Delhi District Court
State vs . Jakir Malik on 15 October, 2013
1
FIR No. 34/11
PS - Sultan Puri
IN THE COURT OF SH. MAHESH CHANDER GUPTA :
ADDITIONAL SESSIONS JUDGE : SPECIAL FAST TRACK
COURT : NORTHWEST DISTRICT : ROHINI : DELHI
SESSIONS CASE NO. : 58/13
Unique ID No. : 02404R0171612011
State Vs. Jakir Malik
S/o Bundu Malik
R/o RZE/K2D19,
Nihal Vihar,
Delhi.
FIR No. : 34/11
Police Station : Sultan Puri
Under Sections : 376/366/363/419 IPC
Date of committal to session Court : 28/06/2011
Date on which judgment reserved : 03/10/2013
Date of which judgment announced : 15/10/2013
J U D G M E N T
1. Briefly stated the case of the prosecution as unfolded by the report under section 173 Cr.P.C. is as under : 1 of 69 2 FIR No. 34/11 PS - Sultan Puri That on 02/02/2011 complainant Ram Bharose S/o Shri Chet Ram R/o P2/231, Sultan Puri, Delhi came to the Police Station Sultan Puri at 7:25 p.m. and got recorded his statement to the Duty Officer vide DD No. 43A which is to the effect that, his daughter prosecutrix (name withheld being a case U/s 376 IPC) aged about 13 years who studies in Surya Public School, Krishan Vihar in 8th Class had left for School a about 8:00 a.m. today in the morning in her school dress and at about 9:00 a.m. phone of her madam had come from school that his daughter has not reached at the School. He suspects that his daughter has been enticed/taken away by Jakir S/o Bundu Khan R/o Village Aarti, District Hathras, Tehsil Sadabad (U.P.). Legal action be taken against him. They had been searching for prosecutrix (name withheld) till by this time of their own but she could not traced out. The description of the prosecutrix is, Age 13 years, Height about 5 feet, Colour Gora, Built strong, round face, a burnt scar near left hand fingers, wearing a white colour shirt, saleti colour skirt, red colour sweater, saleti colour tie and is wearing black colour shoes in feet and is having black colour School bag. The statement has been heard and is correct.
From the statement of the complainant, on finding that an 2 of 69 3 FIR No. 34/11 PS - Sultan Puri offence u/s 363 IPC appeared to have been committed, the case was registered. After registration of the case, the investigation of the case was handed over to SI Mukesh Meena. The said information was given on number 100 which was put into channel number 118 by lady Ct. Shimla. The FIR was fed into the computer by Lady Ct. Anjesh and the computerized copy of the FIR was handed over to SI Mukesh Meena. During the course of investigation SI Mukesh Meena made efforts for the searching of the prosecutrix and accused. WT message regarding kidnapping of the prosecutrix was flashed. Information was uploaded on zip net . Information was sent to NCRB, CBI but they could not be found. Further investigation was handed over to ASI Ravinder who after giving notice u/s 160 Cr.P.C. to some persons interrogated them. On 18/02/2011, ASI Ravinder recovered the prosecutrix with accused Jakir at Railway Station Tehsil Sadabad, Hathras U.P. at the pointing out Sh. Dhyan Singh, Uncle of the prosecutrix. They were brought to Delhi and were interrogated. Statement of witnesses were recorded. Statement of the prosecutrix in the presence of NGO was recorded. Medical examinations of the prosecutrix and the accused were got conducted at the SGM Hospital, Mangolpuri, Delhi. The sealed exhibits handed over 3 of 69 4 FIR No. 34/11 PS - Sultan Puri by the concerned doctors after the medical examinations of prosecutrix and accused, were taken into police possession. Accused Jakir was arrested after finding sufficient evidence against him. Statement of prosecutrix u/s 164 Cr.P.C. was got recorded. On the basis of the statement of prosecutrix u/s 164 Cr.P.C. and u/s 161 Cr.P.C., sections 366/376/419 IPC were added in the case. The sealed exhibits were sent to the FSL.
Upon completion of necessary further investigation challan was prepared for the offences u/s 363/366/376/419 IPC against accused Jakir Malik and was sent to the court for trial.
2. Since the offences u/s 366/376 IPC are 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 u/s 209 Cr.P.C.
3. Upon committal of the case to the Court of Session, after hearing on charge prima facie a case U/s 363/366/419/376 IPC was made out against accused Jakir Malik. Charge was framed accordingly 4 of 69 5 FIR No. 34/11 PS - Sultan Puri which was read over and explained to the accused to which he pleaded not guilty and claimed trial.
4. In support of its case prosecution has produced and examined 15 witnesses. PW1 - prosecutrix (name withheld), PW2 - Ram Bharose, PW3 - HC Govind Singh, PW4 - Nihal Bai, PW5 - HC Chander Shekher, PW6 - Dr. Munish Wadhawan, Specialist, SGM Hospital, Delhi, PW7 - Dr. Ajay Kumar, CMO, SGM Hospital, Delhi, PW8 - Sh. Indresh Kumar Mishra, Senior Scientific Officer (Biology), FSL, Rohini, PW9 - Sh. Dhyan Singh, PW10 - W/Constable Kiran, PW11 - Constable Rajender Singh, PW12 - Lady Constable Sushma, PW13 - ASI Ravinder Singh, PW14 - SI Mukesh Meena and PW15 - Sh. Mangi Lal, Registrar, Death & Birth, Gram Panchayat Chandera, Tehsil Sikray, District Dausa, Rajasthan.
5. In brief the witnessography of the prosecution witnesses is as under : PW1 prosecutrix is the victim who deposed regarding the incident and proved her recovery memo Ex. PW1/A, signed by her at 5 of 69 6 FIR No. 34/11 PS - Sultan Puri point 'A', her statement recorded u/s 164 Cr.P.C. Ex. PW1/B, signed by her at point 'A' and also identified one blue colour underwear Ex. P1.
PW2 Ram Bharose is the father of the prosecutrix who deposed regarding the reporting of the matter to the police for the missing of his daughter/prosecutrix and on the investigational aspects carried out by the police for the recovery of his daughter/prosecutrix and on the investigational aspects which he joined/noticed.
PW3 HC Govind Singh is the MHC(M) who proved the relevant entry of register no. 19, copy of road certificate and copy of the acknowledgment of the FSL and deposed that on 19/02/2011 he was working as MHC(M) at PS - Sultan Puri. On that day, ASI Ravinder Singh deposited one envelope of yellow colour wrapped with the tape of Hospital and he had also deposited three sealed pullindas alongwith a sample seal sealed with the seal of SGMH Mangol Puri and he (PW3) made entry in this respect at serial no. 12632 in register no. 19. He has brought the original register. The copy of the entry is Ex. PW3/A (OSR). All the four pullindas and a sample seal on 21/04/2011 was sent 6 of 69 7 FIR No. 34/11 PS - Sultan Puri to FSL, Rohini through SI Mukesh Meena and he (PW3) made entry in this respect at point 'A' on Ex. PW3/A. The four pullindas were previously sent on 20/04/2011 vide road certificate no. 6/21/11 but the same were received without getting the pullindas deposited in the FSL. He (PW3) had also brought the road certificate register and the copy of the same is Ex. PW3/B (OSR). The copy of the acknowledgment given by the FSL Official to SI Mukesh is Ex. PW3/C (OSR). All the four pullindas sealed with the seal of FSL containing remnant of the articles were received back on 21/12/2011 alongwith result from FSL, Rohini and he (PW3) made entry at point 'C' on Ex. PW3/A and the result was submitted in the Court through SI Mukesh Meena and he (PW3) made entry in this respect at point 'D'.
PW4 Nihal Bai is the mother of the prosecutrix who deposed regarding the missing of her daughter/prosecutrix and of the lodging of the missing report by her husband (PW2 Ram Bharose) and on the investigational aspects carried out by the police for the recovery of her daughter/prosecutrix and regarding the facts relating to the incident disclosed by her daughter/prosecutrix to the Police and on the 7 of 69 8 FIR No. 34/11 PS - Sultan Puri investigational aspects which she joined/noticed.
PW5 HC Chander Shekhar is the Duty Officer who deposed that on 02/02/2011 he was posted as duty officer in PS - Sultan Puri and was on duty from 4:00 p.m. to 12:00 mid night. On that day at about 7:25 p.m. complainant Ram Bharosay came in the police station and he gave statement. On the basis of the same and on his (PW5) instructions present FIR No. 34/11 under section 363 IPC was registered. After registration of the FIR, he (PW5) handed over the copy of the FIR to SI Mukesh Meena for further investigation. He has brought the original FIR register, copy of the FIR is Ex.PW5/A bearing his signature at point 'A'.
PW6 Dr. Munish Wadhavan, Specialist SGM Hospital who proved the gynaecological examination of the prosecutrix conducted by Dr. Rajni, S.R. Gynae. from portion 'X' to 'X', Ex. PW6/A on the MLC of the prosecutrix (Ex. PW7/A), bearing signature of Dr. Rajni at point 'A'.
PW7 Dr. Ajay Kumar, CMO, SGM Hospital, Delhi 8 of 69 9 FIR No. 34/11 PS - Sultan Puri deposed that on 19/02/2011, he examined patient/prosecutrix (name withheld) D/o Ram Bharose, Age - 12 years, Female who was brought to Hospital with alleged history of kidnapping and sexual assault between 02/02/2011 till 18/02/2011 night by somebody when she came back her house as told by brought by. On local examination there is no any evidence of fresh external injury seen all over the body. After examination the patient was referred to SR Gynae for opinion and evaluation. He prepared the MLC. The same is Ex. PW7/A bearing his signature at point 'A'.
On the same day he also examined Jakir Malik S/o Bundu Malik, age - 19 years, Male who was brought to Hospital for medical examination with alleged history of sexual assault since 02/02/2011 as told by himself and brought by. After examination he was of the opinion that there is nothing to suggest that Jakir Malik is not capable of performing sexual intercourse. He prepared the MLC. The same is Ex. PW7/B bearing his signature at point 'A'.
PW8 Sh. Inderesh Kumar Mishra, Senior Scientific Officer (Biology), FSL Rohini who proved the biological and serological 9 of 69 10 FIR No. 34/11 PS - Sultan Puri reports Ex. PW8/A and Ex. PW8/B respectively which bear his signatures at points 'A'.
PW9 Sh. Dhyan Singh is the uncle of the prosecutrix (brother of PW2 Ram Bharose, father of the prosecutrix) who on 18/02/2011 joined the investigation with Police and deposed regarding the recovery of prosecutrix and arrest of accused Jakir Malik and proved the arrest memo of accused Ex. PW9/A, his personal search memo Ex. PW9/B both bearing his signature at point 'A' and recovery memo of prosecutrix Ex. PW1/A, signed by him at point 'B'.
PW10 W/Constable Kiran who on 18/02/2011 joined the investigation with IO ASI Ravinder and deposed that on 18.02.2011, she (PW10) along with ASI Ravinder, HC Rajender Singh & Uncle of the Prosecutrix Dhyan Singh had gone to Hathras, U.P. after taking due permission from the higher officials. When they reached at Pura Railway Station, a boy and a girl were found sitting on the bench of Railway Station. At the instance of Dhyan Singh, both boy and girl were apprehended. The girl/prosecutrix (name withheld) was interrogated and 10 of 69 11 FIR No. 34/11 PS - Sultan Puri she (prosecutrix) also stated that the boy namely Jakir has brought her here. Thereafter, both were taken to Shadabad PS, U.P as an information was given to Shadabad Police official as boy resides in their jurisdiction. From there they returned to Delhi and directly to SGM Hospital along with the prosecutrix (name withheld) & Jakir. The family members of prosecutrix (name withheld) were informed and NGO Najma Khan was also informed about the recovery of prosecutrix. Statement of prosecutrix (name withheld) was taken by the IO ASI Ravinder Singh in the presence of her mother and NGO Najma Khan. Later on prosecutrix (name withheld) was medically examined from the hospital and she remained in her (PW10) protection. After medical examination of prosecutrix (name withheld), concerned doctor has given a sealed pullinda and the same was taken into possession by the IO at PS vide memo Ex. PW10/A signed by her (PW10) at point 'A'. The boy Jakir was also got medically examined who was under the protection of Constable Rajender and after medical examination Constable Rajender has also handed over the sealed pulindas and sample seal, given to him by the concerned doctor was also seized by the IO vide memo Ex. PW10/B signed by her (PW10) at point 'A'. The statement of Prosecutrix 11 of 69 12 FIR No. 34/11 PS - Sultan Puri was also recorded U/s 164 Cr.P.C. from the concerned Court by the IO and at that time W. Home Guard Sushma was also with them. Thereafter, the girl was produced in the Court and she was released in the custody of her parents. The girl was recovered and a recovery memo was also prepared by ASI Ravinder vide memo Ex. PW1/A signed by her (PW10) at point 'C'. She correctly identified the accused in the Court. She also stated that she had also signed personal search memo of the accused Jakir i.e. Ex. PW9/B at point 'B'.
PW11 Constable Rajender Singh who on 18/02/2011 joined the investigation with IO ASI Ravinder and deposed on the same lines and on the investigational aspects as has been deposed by PW10 - W. Constable Kiran and besides proving the other memos, as have been proved by prosecutrix and PW9 Dhyan Singh also proved the seizure memo of the articles contained in the bag of accused Jakir Ex. PW11/A, signed by him at point 'A' and identified the said articles Ex. P2 (colly.).
PW12 - Lady Constable Sushma who deposed that on 19/02/2011, she was posted as Constable in PS - Sultan Puri. On that 12 of 69 13 FIR No. 34/11 PS - Sultan Puri day, she was called by ASI Ravinder and thereafter she alongwith him took the prosecutrix in the Court where her statement u/s 164 Cr.P.C. was recorded and thereafter she was handed over to her parents.
PW13 - ASI Ravinder Singh is the subsequent Investigating Officer (IO) who deposed that on 14/02/2011 he was posted as ASI in PS
- Sultan Puri. On that day investigation of the case was handed over to him. On 18/02/2011, an information was received that accused Jakir and prosecutrix would come at Delhi in train from native village Aarti of Jakir via Pura, District Hatras. Thereafter, he alongwith Constable Rajender, Lady Constable Kiran and Dhyan Singh, the uncle of prosecutrix had left the Police Station in the private vehicle for Pura. On the railway station at Pura, District Hatras, prosecutrix and accused Jakir were sitting on a bench. On the pointing out of Dhyan Singh, accused Jakir was apprehended and the prosecutrix (name withheld) was recovered vide seizure memo Ex. PW1/A signed by him at point 'X' and proved the seizure memo of the bag of accused Jakir Ex. PW11/A signed by him at point 'B' and deposed on the investigational aspects and proved the seizure memo of the sealed exhibits which were handed over by the 13 of 69 14 FIR No. 34/11 PS - Sultan Puri Doctor after the medical examination of prosecutrix Ex. PW10/A signed by him at point 'B', the seizure memo of the sealed exhibits which were handed over by the Doctor after the medical examination of accused Jakir Ex. PW10/B signed by him at point 'B', arrest memo of accused Jakir Ex. PW9/A, his personal search memo Ex. PW9/B signed by him at points 'X' respectively, his disclosure statement Ex. PW13/A signed by him at point 'A' and proved the application for recording the statement of prosecutrix u/s 164 Cr.P.C. Ex. PW13/B signed by him at point 'A' and the application for obtaining the copy of the statement of the prosecutrix Ex. PW13/C signed by him at point 'A', the seizure memo of the School record of prosecutrix showing her date of birth Ex. PW13/D, the documents regarding the date of birth of the prosecutrix are Ex. PW13/D1, the seizure memo of the birth certificate of the prosecutrix Ex. PW13/E signed by him at point 'A', copy of the birth certificate of the prosecutrix Ex. PW13/E1 and proved the articles contained in the bag seized from accused Jakir vide seizure memo Ex. PW11/A as Ex. P2 (Colly.).
PW14 - SI Mukesh Meena is the initial and last 14 of 69 15 FIR No. 34/11 PS - Sultan Puri Investigating Officer (IO) of the case who deposed that on 02/02/2011, he (PW14) was posted as SI in PS - Sultan Puri. On that day Duty Officer handed over to him the copy of FIR of the present case and investigation was marked to him (PW14). Complainant Ram Bharose also met him (PW14) at the PS. He (PW14) alongwith Ram Bharose searched the accused Jakir in Nihal Vihar but he was not found. He (PW14) tried to search the prosecutrix through W.T. Message, NCRV, CBI and mobile number of Jakir was kept under surveillance. On 12/02/2011, he (PW14) proceeded on leave and case file was handed over to MHC(R). On 28/02/2011, he (PW14) joined his duties and taken over the investigation and found that accused Jakir has been arrested and prosecutrix has been recovered. Ram Bharose handed over to him (PW14) the birth certificate of the prosecutrix (name withheld) which was seized by him vide seizure memo Ex. PW13/E, the copy of birth certificate is already Ex. PW13/E1. On 21/04/2011 the exhibits were deposited in the FSL and thereafter he deposited the receipt with MHC(M). He recorded the statements of witnesses. After completing the investigation the challan was prepared and filed in the Court. Later on FSL result was collected and filed in the Court. He correctly identified the accused Jakir present in the Court.
15 of 69 16 FIR No. 34/11 PS - Sultan Puri PW15 - Sh. Mangi Lal, Registrar, Death & Birth, Gram Panchayat Chandera, Tehsil Sikray, District Dausa, Rajasthan who deposed that he has brought the summoned record. As per their record, there is an entry regarding the birth registration of one child prosecutrix (name withheld) D/o Sh. Ram Bharose and mother name Nehalo, R/o Village Surer, Post Chandera, Tehsil Sikray, District Dausa (Rajasthan) at Serial No. 7 of their Birth Register. Her birth was registered on 03/03/2011 by the father of the child prosecutrix (name withheld). As per their record, her date of birth is 16/04/1999. The copy of the birth register showing the relevant entry is Ex. PW15/A. The birth certificate, the copy of which is already Ex. PW13/E1 was issued from their office bearing his signature at point 'A'.
The testimonies of the prosecution witnesses shall be dealt with in detail during the course of appreciation of evidence.
6. Statement of accused Jakir Malik was recorded u/s 313 Cr.P.C wherein he pleaded innocence and false implication and did not 16 of 69 17 FIR No. 34/11 PS - Sultan Puri opt to lead any defence evidence.
7. Learned Counsel for the accused submitted that crux of the prosecution case is that on 02/02/2011 the prosecutrix voluntarily came from her house and on the way the accused met her and he forcibly took her to Nihal Vihar where she stayed for six days with the accused in his house and prior to 02/02/2011 on 26/01/2011 she was intimidated by the accused and she did not disclose the facts either to her parents or to her friends or to her School teacher.
Learned Counsel for the accused further submitted that the prosecutrix is not at all reliable in view of the facts and circumstances that rape has not at all established by the prosecutrix.
Learned Counsel for the accused further submitted that according to the prosecution the age of the prosecutrix at the time of incident was 14 years. The certificate established by prosecution shows that she was admitted in 7th class in Surya Public School, Krishan Vihar, Delhi they have also given birth certificate. She was student of 8th class 17 of 69 18 FIR No. 34/11 PS - Sultan Puri at that time. Learned Counsel for the accused further submitted that on the similar facts when the prosecutrix was aged 13 years and she was a student of class 7th the Hon'ble Delhi High Court has held that the Trial Court acquitted all the three accused persons in a case punishable u/s 376(2)(g)/372/511/506/353/366 IPC mainly on the ground that the entire case of the prosecution hinged on testimony of prosecutrix who was aged about 13 years. The circumstances showed that the prosecutrix did not present true facts to Court and her testimony could not be taken at its face value. Doctor did not give any opinion that prosecutrix was victim of said offence Learned Counsel for the accused further submitted that according to the prosecution case the prosecutrix remained in the company of the accused for sufficient time i.e. 16 days. For first 6 days she remained in the company of the accused at Nihal Vihar. Then she went to Hathras on 02/02/2011. She was allegedly taken on motorcycle from Sultan Puri to Nihal Vihar. She has deposed that she did not raise any alarm when she was made to sit on motorcycle on 02/02/2011 or at the place of Nihal Vihar where she was taken by accused Jakir. She also 18 of 69 19 FIR No. 34/11 PS - Sultan Puri deposed that it is correct that she was taken from thorough fare and busy roads. She further deposed that she stayed for about 56 days at Nihal Vihar with the accused and during this period she did not tell to any family members of the accused or any of their neighbours. She further deposed that she alongwith the accused came on the Railway Station and from Delhi to Hathras. She travelled in a train but she neither raise any alarm nor she disclosed to any of the passengers at Railway Station on in the train. She has also deposed that she stayed with the accused at the native place of accused for two days but she did not tell any of the facts to mother of the accused nor any neighbours then she had come to Railway Station alongwith the accused from native village of the accused and she was found sitting at Railway Station alongwith the accused. There also she did not mention to any person regarding her kidnapping or committing of offence upon her. She has specifically deposed that she did not raise any alarm. Learned Counsel for the accused further submitted that on the similar facts and circumstances even three accused persons who were charged for the offences punishable u/s 376(2)
(g)/372/353/366 were acquitted mainly on the ground that neither she raised any alarm nor she made any complaint to any person. In the 19 of 69 20 FIR No. 34/11 PS - Sultan Puri present case the witnesses including prosecutrix have deposed that she never gave information to her parents, school teacher regarding threats given to her. The present case is on better footing from the judgment in which the accused of gang raped are acquitted.
Learned Counsel for the accused further submitted that he prosecutrix has specifically deposed that she did not disclose regarding intimidation which had been given to her by the accused prior to 26/01/2011 nor the same was disclosed by her to any teacher in the school or to any friend.
Learned Counsel for the accused further submitted that the prosecution has miserably failed to prove the charges against the accused. According to the prosecution as regarding the whole evidence it shows that absence of injury on the person and on private parts of prosecutrix. The perusal of the prosecution evidence as submitted above the entire incident was improbable or imaginary. The Hon'ble Supreme Court in Radhu Vs. State of M.P. has held that Courts should, bear in mind that false charges of rape are not unknown. The crossexamination of the 20 of 69 21 FIR No. 34/11 PS - Sultan Puri prosecutrix and her parents has revealed that the prosecutrix voluntarily left her residence and she voluntarily accompanied the accused. She stayed with him for six days for first at Nihal Vihar, and she accompanied the accused upto Railway Station. The accused went to purchase the ticket, the prosecutrix remained sitting on Railway Station then travelled in the train but she did not disclose to any passenger at the Railway Station or in the train or after alighted from the train at the Railway Station or any family members of the accused or any neighbours of the accused at Nihal Vihar or at his native village and according to her recovery with the accused it shows that she voluntarily accompanied him. The medical evidence has proved that no sexual intercourse has been committed.
Learned Counsel for accused also referred to the cases and are reported as 'State of NCT of Delhi Vs. Shiva & Ors.' MANU/DE/0986/2012; 'Radhu Vs. State of Madhya Pradesh', (2007) 12 SCC 57 and 'Sehi Ram Vs. State of H.P.', 2011(3)Crimes756.
Learned Counsel for the accused, in view of the above submissions prayed for the acquittal of the accused on all the charges 21 of 69 22 FIR No. 34/11 PS - Sultan Puri levelled against him.
8. 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.
9. I have heard Sh. S. C. Sroai, Learned Addl. PP for the State and Sh. B. S. Rana, Learned Counsel for the accused and have also carefully perused the entire record.
10. The charge for the offences punishable u/s 363/366/419/376 IPC against the accused Jakir Malik is that on 02/02/2011 at about 7:25 a.m. he kidnapped prosecutrix (name withheld) D/o Ram Bharosay, aged about 13 years while she was going to her school without her consent with intend to knowing that she may be forced to illicit intercourse with him and that, on the abovesaid date and time, he cheated prosecutrix 22 of 69 23 FIR No. 34/11 PS - Sultan Puri (name withheld) by personation and he stated his name as Prince Choudhary who belongs to Hindu Caste and taken prosecutrix (name withheld) at Nihal Vihar, Delhi in a room and committed rape on the person of prosecutrix (name withheld).
11. It is to be mentioned that as a matter of prudence, in order to avoid any little alteration in the spirit and essence of the depositions of the material witnesses, during the process of appreciation of evidence at some places their part of depositions have been reproduced, in the interest of justice.
AGE OF THE PROSECUTRIX
12. PW1 - Prosecutrix in her examinationinchief has deposed that : "At the time of incident, I was studying in 8th Class at Surya Public School, Krishan Vihar, near to my residence. As per record my date of birth is 16/04/1999. My birth place is Village Surer in Rajasthan. I have mentioned the date of birth in my School record as 16/04/1999. I have taken admission in Surya Public School, Krishan Vihar in 7th Class. I studied upto 6th Class in my native village and on the basis of transfer certificate, I took admission in Surya Public School."
23 of 69 24 FIR No. 34/11 PS - Sultan Puri PW4 - Nihal Bai, mother of the prosecutrix in her examinationinchief has deposed that : "My daughter had completed 12 years and was running in the thirteen year at that time."
There is nothing in the crossexaminations of PW1 - prosecutrix and PW4 - Nihal Bai so as to impeach their creditworthiness.
PW15 - Sh. Mangi Lal, Registrar, Death & Birth, Gram Panchayat Chandera, Tehsil Sikray, District Dausa, Rajasthan who produced the birth registration record of the prosecutrix (name withheld) and deposed that he has brought the summoned record. As per their record, there is an entry regarding the birth registration of one child prosecutrix (name withheld) D/o Sh. Ram Bharose and mother name Nehalo, R/o Village Surer, Post Chandera, Tehsil Sikray, District Dausa (Rajasthan) at Serial No. 7 of their Birth Register. Her birth was registered on 03/03/2011 by the father of the child prosecutrix (name withheld). As per their record, her date of birth is 16/04/1999. The copy of the birth register showing the relevant entry is Ex. PW15/A. The birth certificate, the copy of which is already Ex. PW13/E1 was issued from 24 of 69 25 FIR No. 34/11 PS - Sultan Puri their office bearing his signature at point 'A'.
Despite grant of opportunity PW15 - Mangi Lal was not crossexamined on behalf of the accused. Nor any evidence to the contrary has been produced or led on the record by the accused.
In the circumstances, it stands established on the record that the date of birth of the prosecutrix is 16/04/1999.
As the date of alleged incident is 02/02/2011 and the date of birth of prosecutrix is 16/04/1999, on simple arithmetical calculation, the age of prosecutrix comes to 11 years, 09 months and 16 days as on the date of incident on 02/02/2011.
In view of above and in the circumstances, it stands established on record that PW1 prosecutrix was aged 11 years, 09 months and 16 days as on the date of alleged incident on 02/02/2011.
13. Learned Counsel for the accused submitted that according to the prosecution the age of the prosecutrix at the time of incident was 14 years. The certificate established by prosecution shows that she was admitted in 7th class in Surya Public School, Krishan Vihar, Delhi they 25 of 69 26 FIR No. 34/11 PS - Sultan Puri have also given birth certificate. She was student of 8th class at that time.
I have carefully perused and analysed the evidence on record.
Learned Counsel for the accused failed to indicate any material on the record as to the basis of raising the said plea that : "According to the prosecution the age of the prosecutrix at the time of incident was 14 years".
All the relevant and material evidence on the aspect of age of prosecutrix has been discussed, detailed and analysed hereinabove. At the cost of repetition, it stands established on the record that PW1
- prosecutrix was aged 11 years 09 months and 16 days as on the date of alleged incident on 02/02/2011.
In the circumstances, there is no substance in the plea so raised by the Learned Counsel for the accused. MEDICAL EVIDENCE OF THE PROSECUTRIX
14. PW7 Dr. Ajay Kumar, CMO, SGM Hospital, Delhi who examined patient/prosecutrix and deposed that on 19/02/2011, he examined patient/prosecutrix (name withheld) D/o Ram Bharose, Age -
26 of 69 27 FIR No. 34/11 PS - Sultan Puri 12 years, Female who was brought to Hospital with alleged history of kidnapping and sexual assault between 02/02/2011 till 18/02/2011 night by somebody when she came back her house as told by brought by. On local examination there is no any evidence of fresh external injury seen all over the body. After examination the patient was referred to SR Gynae for opinion and evaluation. He prepared the MLC. The same is Ex. PW7/A bearing his signature at point 'A'.
There is nothing in the crossexamination of PW7 - Dr. Ajay Kumar so as to impeach his creditworthiness.
PW6 Dr. Munish Wadhavan, Specialist SGM Hospital who proved the gynaecological examination of the prosecutrix as was conducted by Dr. Rajni, S.R. Gynae. from portion 'X' to 'X', Ex. PW6/A on the MLC of the prosecutrix (Ex. PW7/A), bearing signature of Dr. Rajni at point 'A'.
Despite grant of opportunity PW6 - Dr. Munish Wadhwan was not crossexamined on behalf of accused.
In view of above and in the circumstances, the medical examination vide MLC Ex. PW7/A and the gynaecological 27 of 69 28 FIR No. 34/11 PS - Sultan Puri examination of PW1 - prosecutrix from portion 'X' to 'X' Ex. PW6/A on the MLC Ex. PW7/A stands proved on the record. VIRILITY OF THE ACCUSED
15. PW7 Dr. Ajay Kumar, CMO, SGM Hospital, Delhi who examined accused Jakir Malik and deposed that on 19/02/2011, he examined Jakir Malik S/o Bundu Malik, age - 19 years, Male who was brought to Hospital for medical examination with alleged history of sexual assault since 02/02/2011 as told by himself and brought by. After examination he was of the opinion that there is nothing to suggest that Jakir Malik is not capable of performing sexual intercourse. He prepared the MLC. The same is Ex. PW7/B bearing his signature at point 'A'.
There is nothing in the crossexamination of PW7 - Dr. Ajay Kumar so as to impeach his creditworthiness.
In view of above and in the circumstances, it stands proved on the record that accused Jakir Malik was capable of performing sexual intercourse.
BIOLOGICAL AND SEROLOGICAL EVIDENCE 28 of 69 29 FIR No. 34/11 PS - Sultan Puri
16. PW8 Sh. Inderesh Kumar Mishra, Senior Scientific Officer (Biology), FSL Rohini who proved the biological and serological reports Ex. PW8/A and Ex. PW8/B respectively which bear his signatures at points 'A'.
As per biological report Ex. PW8/A the description of 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 "SGMH GNCT DELHI" containing exhibits '1a', '1b', '1c', '1d', '1e', '1f', '1g', '1h', '1i', '1j', '1k', '1l', '1m' and '1n'. Exhibit '1a' : Dark brown foul smelling liquid labelled as 'Blood plain' kept in a tube sealed with the seal of 'SGMH GNCT DELHI'.
Exhibit '1b' : Dark brown foul smelling liquid labelled as 'Blood EDTA' kept in a tube sealed with the seal of 'SGMH GNCT DELHI'.
Exhibit '1c' : Few nail clippings labelled as 'Lt. Nail cutting' kept in a cloth parcel sealed with the seal of 'SGMH GNCT DELHI'.
Exhibit '1d' : Few nail clippings labelled as 'Rt. Nail cutting' kept in a cloth parcel sealed with the seal of 'SGMH GNCT DELHI'.
Exhibit '1e' : Cotton wool swab on a wooden stick labelled as 'Lt.
Nail scrapping' kept in a plastic tube sealed with the 29 of 69 30 FIR No. 34/11 PS - Sultan Puri seal of 'SGMH GNCT DELHI'.
Exhibit '1f' : Cotton wool swab on a wooden stick labelled as 'Rt.
Nail scrapping' kept in a plastic tube sealed with the seal of 'SGMH GNCT DELHI'.
Exhibit '1g' : Cotton wool swab on a wooden stick labelled as 'Left vulval swab' kept in a plastic tube sealed with the seal of 'SGMH GNCT DELHI'.
Exhibit '1h' : Cotton wool swab on a wooden stick labelled as 'right vulval swab' kept in a plastic tube sealed with the seal of 'SGMH GNCT DELHI'.
Exhibit '1i' : Cotton wool swab on a wooden stick labelled as 'Left lateral vaginal swab' kept in a plastic tube sealed with the seal of 'SGMH GNCT DELHI'.
Exhibit '1j' : Cotton wool swab on a wooden stick labelled as 'Right lateral vaginal swab' kept in a plastic tube sealed with the seal of 'SGMH GNCT DELHI'.
Exhibit '1k' : Cotton wool swab on a wooden stick labelled as 'Anterior vaginal swab' kept in a plastic tube sealed with the seal of 'SGMH GNCT DELHI'.
Exhibit '1l' : Cotton wool swab on a wooden stick labelled as 'Posterior vaginal swab' kept in a plastic tube sealed with the seal of 'SGMH GNCT DELHI'.
Exhibit '1m' : Three strands of hair labelled 'Combed pubic hair' kept in a cloth parcel sealed with the seal of 'SGMH GNCT DELHI'.
Exhibit '1n' : Few strands of hair labelled 'Cutting of pubic hair' kept in a cloth parcel sealed with the seal of 'SGMH GNCT DELHI'.
30 of 69 31 FIR No. 34/11 PS - Sultan Puri Parcel '2' : One sealed cloth parcel sealed with the seal of "SGMH MANGOLPURI DELHI" containing exhibit '2'.
Exhibit '2' : One underwear. Parcel '3' : One sealed cloth parcel sealed with the seal of
"SGMH MANGOLPURI DELHI" containing exhibit '3', kept in a tube. Exhibit '3' : Dark brown foul smelling liquid described as 'Blood sample'.
Parcel '4' : One sealed cloth parcel sealed with the seal of "SGMH MANGOLPURI DELHI" containing exhibit '4'. Exhibit '4' : Few strands of hair described as 'pubic hair'.
RESULT OF ANALYSIS
1. Blood was detected on exhibits '1a', '1b' and '3'.
2. Blood could not be detected on exhibits '1c', '1d', '1e', '1f', '1g', '1h', '1i', '1j', '1k', '1l', '1m', '1n', '2' and '4'.
3. Human semen was detected on exhibits '1i', '1j', '1k', '1l' and '2'.
4. Semen could not be detected on exhibits '1c', '1d', '1e', '1f', '1g', '1h', '1m', '1n' and '4'.
5. On the basis of morphological and microscopical examination the hair found in exhibits '1m' and '4' were identified to be human in origin. The hair found in exhibits '1m' and '4' were identified to be 31 of 69 32 FIR No. 34/11 PS - Sultan Puri pubic hair. However, no further opinion is offered from this division of this laboratory due to less number of hairs found in exhibit '1m'.
6. Hair could not be detected on exhibit '2'.
7. Vaginal epithelial cells could not be detected on exhibit '2'.
8. Report of serological analysis in original is attached herewith. NOTE : Remnants of the exhibits have been sealed with the seal of 'IKM FSL DELHI'.
The serological report Ex. PW8/B reads as under: Exhibits Species of origin ABO Grouping/Remarks Blood stains: '1a' Blood sample Sample was putrefied hence no opinion '1b' Blood sample Sample was putrefied hence no opinion '3' Blood sample Sample was putrefied hence no opinion Semen stains: '1i' Cotton wool swab No reaction '1j' Cotton wool swab No reaction '1k' Cotton wool swab No reaction 32 of 69 33 FIR No. 34/11 PS - Sultan Puri '1l' Cotton wool swab No reaction '2' Underwear No reaction On careful perusal and analysis of the biological and serological evidence on record, it clearly shows that human semen was detected on exhibit '1i' (left lateral vaginal swab of the prosecutrix), exhibit '1j' (right lateral vaginal swab of the prosecutrix), exhibit '1k' (Anterior vaginal swab of the prosecutrix), exhibit '1l' (Posterior vaginal swab of the prosecutrix) and exhibit '2' (underwear of accused Jakir Malik).
On a conjoint reading of the medical evidence, the gynanecological examination from portion 'X' to 'X' Ex. PW6/A on the MLC Ex. PW7/A of the prosecutrix together with the MLC of the accused Jakir Malik Ex PW7/B, in the light of the biological and serological evidence detailed hereinabove, it clearly indicates the taking place of sexual intercourse activity.
In the circumstances, it stands clearly established on the record that sexual intercourse activity has taken place in the instant 33 of 69 34 FIR No. 34/11 PS - Sultan Puri case.
As per the biological report Ex. PW8/A with regard to the description of the articles contained int he parcels, it is noticed that, Parcel No. 1 belongs to PW1 - prosecutrix which was seized vide seizure memo Ex. PW10/A dated 19/02/2011 and parcel no. 2 to 4 belongs to accused Jakir Malik which were seized vide seizure memo Ex. PW10/B dated 19/02/2011.
As per the biological report Ex. PW8/A, prosecution has discharged its initial burden of proving the presence of Human semen on exhibit '1i' (left lateral vaginal swab of the prosecutrix seized vide seizure memo Ex. PW10/A), exhibit '1j' (right lateral vaginal swab of the prosecutrix seized vide seizure memo Ex. PW10/A), exhibit '1k' (Anterior vaginal swab of the prosecutrix seized vide seizure memo Ex. PW10/A), exhibit '1l' (Posterior vaginal swab of the prosecutrix seized vide seizure memo Ex. PW10/A) and exhibit '2' (underwear of accused Jakir Malik seized vide seizure memo Ex. PW10/B).
34 of 69 35 FIR No. 34/11 PS - Sultan Puri Accused was under an obligation to explain how and under what circumstances, the human semen came to be present on the said exhibits '1i', '1j', '1k', '1l' and '2' as discussed and detailed hereinabove. The absence of such an explanation both in the section 313 Cr.P.C. statement of the accused and his omission to lead any evidence in this regard and his complete denial becomes an additional link in the prosecution case.
17. Now let the testimonies of PW1 - Prosecutrix, PW2 - Ram Bharosey, her father, PW4 - Nihal Bai, her mother and PW9 - Dhyan Singh, her uncle be perused and analysed.
PW1 prosecutrix, in her examinationinchief has deposed which is reproduced and reads as under : "On 02/02/2011, I was going to my School. On the way a boy namely Jakir and who was known to me since he met me previously at the house of my Bhua at Nihal Vihar. Accused Jakir is present in the Court today (Correctly Identified). He has stated his name as Anshuman. He has force (forced) me to sit on the motorcycle and he has forced me to smell me some intoxicated substance, which made me semi conscious situation and he has taken me to Nihal Vihar in a room.
35 of 69 36 FIR No. 34/11 PS - Sultan Puri Where he has committed rape upon me. I insisted him that I have to go to my parents house but he did not acceded (accede) my request and he forcibly sexually assaulted. Thereafter, he was taking me with him to his native village and when we reached at the Station of native village of accused Jakir, Jakir told me his name is Prince Choudhary and he was Hindu by cast (caste) and belongs to Jat Community. My uncle, Dhyan Singh met me there, who has taken me to Delhi by bus. Later on, I came to know that he belongs to Muslim Community. My uncle directly taken me to PS - Sultan Puri after returning from the native village of the accused. My uncle Dhyan Singh reached at the Station of accused native village after twelve days of the incident. I do not remember the date and also the name of the native village of the accused. Police have taken me into possession vide recovery memo Ex. PW1/A signed by me at point 'A'. I was got medically examined by the Police at Sanjay Gandhi Hospital. My statement was also got recorded u/s 164 Cr.P.C. from the concerned Court at Rohini.
At this stage a sealed envelope with the seal of SK is open containing the statement recorded u/s 164 Cr.P.C. And I had signed my statement Ex. PW1/B at point 'A'.
At the time of incident, I was studying in 8th Class at Surya Public School, Krishan Vihar, near to my residence. As per record my date of birth is 16/04/1999. My birth place is Village Surer in Rajasthan. I have mentioned the date of birth in my School record as 16/04/1999. I have taken admission in Surya Public School, Krishan Vihar in 7th Class. I studied upto 6th Class in my native village and on the basis of transfer certificate, I took admission in Surya Public School."
From the aforesaid narration of PW1 - prosecutrix, it is 36 of 69 37 FIR No. 34/11 PS - Sultan Puri clear that on 02/02/2011, she was going to her school. On the way a boy namely Jakir and who was known to her since he met her previously at the house of her Bhua at Nihal Vihar. She correctly identified the accused Jakir present in the Court. He has stated his name as Anshuman. He has forced her to sit on the motorcycle and he has forced her to smell her some intoxicated substance, which made her in semi conscious situation and he has taken her to Nihal Vihar in a room. Where he has committed rape upon her. She insisted him that she had to go to her parents house but he did not accede to her request and he forcibly sexually assaulted. Thereafter, he had taken her with him to his native village and when they reached at the Station of native village of accused Jakir, Jakir told her his name is Prince Choudhary and he was Hindu by caste and belongs to Jat Community. Her uncle, Dhyan Singh met her there, who has taken her to Delhi by bus. Later on, she came to know that he belongs to Muslim Community. Her uncle directly taken her to PS - Sultan Puri after returning from the native village of the accused. Her uncle Dhyan Singh reached at the Station of accused native village after twelve days of the incident. She does not remember the date and also the name of the native village of the accused. Police had taken 37 of 69 38 FIR No. 34/11 PS - Sultan Puri her into possession vide recovery memo Ex. PW1/A signed by her at point 'A'. She was got medically examined by the Police at Sanjay Gandhi Hospital. Her statement was also got recorded u/s 164 Cr.P.C. from the concerned Court at Rohini. She identified her signature at point 'A' on the statement u/s 164 Cr.P.C. Ex. PW1/B. At the time of incident, she was studying in 8th Class at Surya Public School, Krishan Vihar, near to her residence. As per record her date of birth is 16/04/1999. Her birth place is Village Surer in Rajasthan. She had mentioned the date of birth in her School record as 16/04/1999. She had taken admission in Surya Public School, Krishan Vihar in 7th Class. She studied upto 6th Class in her native village and on the basis of transfer certificate, she took admission in Surya Public School.
PW1 - Prosecutrix during her crossexamination has negated the suggestions that she had not disclosed regarding the intimidation given to her by accused Jakir prior to 26/01/2011 to her parents or teachers or friends, as no such intimidation was ever given by accused Jakir or that she had taken (gone) with her own free will on 26/01/2011 with accused Jakir or that on the instructions/directions of 38 of 69 39 FIR No. 34/11 PS - Sultan Puri her parents as well as of Police officials, she made a statement u/s 164 Cr.P.C. or that the statement which she made u/s 164 Cr.P.C. was on the basis of a fabricated statement made u/s 161 Cr.P.C. or that she was not taken forcibly by accused Jakir on 02/02/2011 or that she deposed falsely in her examinationinchief regarding commission of rape by accused Jakir Malik on 02/02/2011 at Nihal Vihar, Delhi or that she was not taken forcibly by accused Jakir Malik on 02/02/2011 or that he never committed rape upon her or that the accused has not forced her to sit on the motorcycle or that he (not) forced her to smell some intoxicated substance or that she has deposed falsely in her examinationinchief or that she has levelled false and fabricated allegation upon accused Jakir Malik at the instance of her parents and Police.
Inspite of incisive crossexamination of PW1 - 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 PW1 - Prosecutrix on careful perusal and analysis is found to be clear, natural, cogent, convincing, trustworthy and inspiring confidence. The 39 of 69 40 FIR No. 34/11 PS - Sultan Puri version of this witness on the core spectrum of the crime has remained intact. There is nothing in her statement to suggest that she had any animus against the accused to falsely implicate him in the case.
The testimony of PW1 - Prosecutrix is also found to be corroborated by the medical evidence and the biological and serological evidence as discussed hereinbefore.
The testimony of PW1 - Prosecutrix is also found to be in consonance with her statement recorded u/s 164 Cr.P.C. Ex. PW1/B bearing her signature at point 'A'.
The testimony of PW1 Prosecutrix is also found to be corroborated by the testimonies of PW2 - Ram Bharosey, father of the prosecutrix, PW4 - Nihal Bai, mother of the prosecutrix and PW9 - Dhyan Singh, uncle of the prosecutrix to whom PW1 Prosecutrix disclosed the facts relating to the crime shortly after the incident at the first available opportunity being relevant u/s 6 and 8 of the Indian Evidence Act, 1872.
PW2 - Ram Bharosey in his examinationinchief has 40 of 69 41 FIR No. 34/11 PS - Sultan Puri deposed that : "On 02/02/2011, my daughter/prosecutrix (name withheld) had gone to School at about 7:30 a.m. At about 8:30 a.m. I received a phone call from the School that my daughter had not reached the School. I searched my daughter of my own but my daughter could not (be) traced out. Then I reported the matter to the Police on the same day and on my statement FIR No. 34/11 u/s 363 IPC was recorded and I raised suspicion on Zakir Malik S/o Bundu Khan who was residing at Nihal Vihar at the house of his brotherinlaw.
On 18/02/2011, I received a phone call from the Police officials that they have some information about the presence of my daughter in village Hathras and also requested me to accompany them in search of my daughter. I was upset and not in a condition to accompany them. On this I sent my brother Dhiyan Singh to accompany the Police officials to the village Hathras, U.P. for identification. After my daughter, my brother came back to Delhi, I alongwith my wife went to Police Station but we were not allowed to meet her (daughter/prosecutrix (name withheld)). We also visited the Hospital where my daughter was medically examined but there also we were not allowed to meet her. Thereafter, my daughter was brought to the Court by the Police and after the conclusion of the necessary proceedings the custody of my daughter was given to me. Accused Zakir present in the Court today (correctly identified)."
From the abovesaid narration of PW2 - Ram Bharosey, it is clear that on 02/02/2011, his daughter/prosecutrix (name withheld) had 41 of 69 42 FIR No. 34/11 PS - Sultan Puri gone to School at about 7:30 a.m. At about 8:30 a.m. he received a phone call from the School that his daughter had not reached the School. He searched his daughter of his own but his daughter could not be traced out. Then he reported the matter to the Police on the same day and on his statement, FIR No. 34/11 u/s 363 IPC was recorded and he raised suspicion on Zakir Malik S/o Bundu Khan who was residing at Nihal Vihar at the house of his brotherinlaw. On 18/02/2011, he received a phone call from the Police officials that they have some information about the presence of his daughter in village Hathras and also requested him to accompany them in search of his daughter. He was upset and not in a condition to accompany them. On this he sent his brother Dhiyan Singh to accompany the Police officials to the village Hathras, U.P. for identification. After his daughter, his brother came back to Delhi, he alongwith his wife went to Police Station but they were not allowed to meet her (daughter/prosecutrix (name withheld)). They also visited the Hospital where his daughter was medically examined but there also they were not allowed to meet her. Thereafter, his daughter was brought to the Court by the Police and after the conclusion of the necessary proceedings the custody of his daughter was given to him. He correctly 42 of 69 43 FIR No. 34/11 PS - Sultan Puri identified the accused Zakir in the Court.
During his crossexamination PW2 - Ram Bharosey has negated the suggestions that Police had advised them that something they will tell and something he (PW2) state then only the case can be registered or that in his presence it was told to his daughter by the Police that she is being taken for her statement and whatever has been told by the Police on the same lines the statement be given by her or that he is deposing falsely.
PW4 - Nihal Bai in her examinationinchief has deposed that : "On 2nd day of the month and the year, month and the year I do not recollect, my daughter/prosecutrix (name withheld) had left for her School at Krishan Vihar on foot at about 7:30 a.m. in the morning. Later at about 9:00 a.m. I received a phone call from the teacher of the School that my daughter/prosecutrix (name withheld) had not came (come) to the School on that day. We searched our daughter at our own but could not trace her out on that evening and also in the coming days. My husband made a missing report at the Police Station Sultan Puri in this respect.
On 18th day of the same month and the year my daughter who was missing from the School and we came to know that my daughter has been traced out by the Police and she was medically 43 of 69 44 FIR No. 34/11 PS - Sultan Puri examined by the Police from SGM Hospital. We went to SGM Hospital where we saw that Police was investigating my daughter and my daughter stated to Police that one boy Jakir had taken her on his motorcycle and she was intoxicated some unwholesome substance and when she regained consciousness she was found herself in Nihal Vihar in a room. My daughter also stated to Police that she requested Jakir to left her at her parental house but he was threatening her again and again. She has also stated that during the period from 2nd to 18th Jakir had committed galat kaam with her. Statement of my daughter was also recorded by the Police. Later on my daughter also produced in the Court. Jakir was also living in Nihal Vihar at that time at a distance from our house. My daughter had completed 12 years and was running in thirteen year at that time."
From the abovesaid narration of PW4 - Nihal Bai, it is clear that on 2nd day of the month and the year, month and the year she does not recollect, her daughter/prosecutrix (name withheld) had left for her School at Krishan Vihar on foot at about 7:30 a.m. in the morning. Later at about 9:00 a.m. she received a phone call from the teacher of the School that her daughter/prosecutrix (name withheld) had not come to the School on that day. They searched their daughter at their own but could not trace her out on that evening and also in the coming days. Her husband made a missing report at the Police Station Sultan Puri in this respect. On 18th day of the same month and the year her daughter who 44 of 69 45 FIR No. 34/11 PS - Sultan Puri was missing from the School and they came to know that her daughter has been traced out by the Police and she (prosecutrix) was medically examined by the Police from SGM Hospital. They went to SGM Hospital where they saw that Police was investigating her daughter and her daughter stated to Police that one boy Jakir had taken her on his motorcycle and she was intoxicated some unwholesome substance and when she regained consciousness she found herself in Nihal Vihar in a room. Her daughter also stated to Police that she requested Jakir to leave her at her parental house but he was threatening her (prosecutrix) again and again. She has also stated that during the period from 2nd to 18th Jakir had committed galat kaam with her. Statement of her (PW4) daughter was also recorded by the Police. Later on her daughter also produced in the Court. Jakir was also living in Nihal Vihar at that time at a distance from their house. Her daughter had completed 12 years and was running in thirteen year at that time.
During her crossexamination PW4 - Nihal Bai has negated the suggestion that the Police was advising her daughter/prosecutrix if she give the statement as per their advise the case will be registered.
45 of 69 46 FIR No. 34/11 PS - Sultan Puri PW9 - Dhyan Singh in his examinationinchief has deposed that : "On 18/02/2011, I went to Hathrus, U.P. from Delhi on asking of my brother Ram Bharose when I reached at the Railway Station Pura, District Hathrus, U.P. in private vehicle alongwith the Police officials of Delhi. At the railway station Pura we saw a boy and girl sitting on the bench. On my identification the girl prosecutrix (name withheld) and boy was (were) apprehended by the Police and the name revealed by prosecutrix (name withheld) as Jakir Malik. Police officials interrogated the boy Jakir and prosecutrix (name withheld) was given under the protection of lady Constable Kiran and we all returned to Delhi. That boy Jakir was got medically examined in SGM Hospital and prosecutrix (name withheld) was also medically examined there. Thereafter, accused was arrested vide arrest memo Ex. PW9/A, signed by me at point 'A' and his personal search was conducted vide memo Ex. PW9/B, signed by me at point 'A'. Accused Jakir was produced in the Court and was sent to JC. Prosecutrix (name withheld) was released on superdari and allow to go to her house. A recovery memo of prosecutrix (name withheld) was also prepared by the IO which is already Ex. PW1/A, signed by me at point 'B'. Accused present in the Court today (correctly identified)".
From the abovesaid narration of PW9 - Dhyan Singh, it is clear that on 18/02/2011, he went to Hathrus, U.P. from Delhi on asking 46 of 69 47 FIR No. 34/11 PS - Sultan Puri of his brother Ram Bharose when he (PW9) reached at the Railway Station Pura, District Hathrus, U.P. in private vehicle alongwith the Police officials of Delhi. At the Railway Station Pura they saw a boy and girl sitting on the bench. On his identification the girl prosecutrix (name withheld) and boy were apprehended by the Police and the name revealed by prosecutrix (name withheld) as Jakir Malik. Police officials interrogated the boy Jakir and prosecutrix (name withheld) was given under the protection of lady Constable Kiran and they all returned to Delhi. That boy Jakir was got medically examined in SGM Hospital and prosecutrix (name withheld) was also medically examined there. Thereafter, accused was arrested vide arrest memo Ex. PW9/A, signed by him (PW9) at point 'A' and his personal search was conducted vide memo Ex. PW9/B, signed by him at point 'A'. Accused Jakir was produced in the Court and was sent to JC. Prosecutrix (name withheld) was released on superdari and allow to go to her house. A recovery memo of prosecutrix (name withheld) was also prepared by the IO which is already Ex. PW1/A, signed by him (PW9) at point 'B'. He correctly identified the accused in the Court.
During his crossexamination PW9 - Dhyan Singh has 47 of 69 48 FIR No. 34/11 PS - Sultan Puri negated the suggestions that Police then tutored the prosecutrix (name withheld) to give statement before the Hon'ble Court u/s 164 Cr.P.C. or that Police told them, if they intend to get the case register then the girl/prosecutrix (name withheld) will have to make a statement u/s 164 Cr.P.C. as they have tutored or that he is deposing falsely.
There is nothing in the crossexamination of PW2 - Ram Bharosey, father of the prosecutrix, PW4 - Nihal Bai, mother of the prosecutrix and PW9 - Dhyan Singh, uncle of the prosecutrix so as to impeach their creditworthiness. They have withstood the rigors of cross examination without being shaken. On careful perusal and analysis and by applying the discerning scrutiny standard [Ref. Raju @ Balachandran & Ors. Vs. State of Tamil Nadu 2012 XII AD (S.C.)1] their testimonies are found to be natural, clear, reliable and having a ring of truth. There is nothing in their statements to suggest that they had any animus against the accused to falsely implicate him in the case.
18. While analysing the testimony of PW1 Prosecutrix, PW2 - Ram Bharosey, father of the prosecutrix, PW4 - Nihal Bai, mother of the 48 of 69 49 FIR No. 34/11 PS - Sultan Puri prosecutrix and PW9 - Dhyan Singh as discussed hereinabove inspite of incisive crossexamination of PW1 Prosecutrix, PW2 - Ram Bharosey, father of the prosecutrix, PW4 - Nihal Bai, mother of the prosecutrix and PW9 - Dhyan Singh nothing has come out in the statements which may throw even a slightest doubt on the prosecution version of the incident. Though, the suggestion by the defence to PW1
- prosecutrix that she had not disclosed regarding the intimidation given to her by accused Jakir prior to 26/01/2011 to her parents or teachers or friends, as no such intimidation was ever given by accused Jakir or that she had taken (gone) with her own free will on 26/01/2011 with accused Jakir or that on the instructions/directions of her parents as well as of Police officials, she made a statement u/s 164 Cr.P.C. or that the statement which she made u/s 164 Cr.P.C. was on the basis of a fabricated statement made u/s 161 Cr.P.C. Or that she was not taken forcibly by accused Jakir on 02/02/2011 or that she deposed falsely in her examinationinchief regarding commission of rape by accused Jakir Malik on 02/02/2011 at Nihal Vihar, Delhi or that she was not taken forcibly by accused Jakir Malik on 02/02/2011 or that he never committed rape upon her or that the accused has not forced her to sit on 49 of 69 50 FIR No. 34/11 PS - Sultan Puri the motorcycle or that he (not) forced her to smell some intoxicated substance or that she has deposed falsely in her examinationinchief or that she has levelled false and fabricated allegation upon accused Jakit Malik at the instance of her parents and Police and the suggestions put to PW2 - Ram Bharosey that Police had advised them that something they will tell and something he (PW2) state then only the case can be registered or that in his presence it was told to his daughter by the Police that she is being taken for her statement and whatever has been told by the Police on the same lines the statement be given by her or that he is deposing falsely and the suggestion to PW4 - Nihal Bai that the Police was advising her daughter/prosecutrix if she give the statement as per their advise the case will be registered, and the suggestions to PW9 - Dhyan Singh that Police then tutored the prosecutrix (name withheld) to give statement before the Hon'ble Court u/s 164 Cr.P.C. or that Police told them, if they intend to get the case register then the girl/prosecutrix (name withheld) will have to make a statement u/s 164 Cr.P.C. as they have tutored or that he is deposing falsely, were put, which were negated by them but the same have not at all being made probable much established by any cogent evidence. Further there is not an iota 50 of 69 51 FIR No. 34/11 PS - Sultan Puri of evidence or even a suggestion that the accused has been falsely implicated because of animosity.
19. 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.
51 of 69 52 FIR No. 34/11 PS - Sultan Puri Whether the rape has occurred or not is a legal conclusion, not a medical one."
In Parikh's Textbook of Medical jurisprudence and Toxicology, the following passage is found : "Sexual intercourse : In law, this term is held to mean the slightest degree of penetration of the vulva by the penis with or without emission of semen. It is therefore quite possible to commit legally the offence of rape without producing any injury to the genitals or leaving any seminal stains."
In Encyclopedia of Crime and Justice (Vol. 4) at page 1356, it is stated:
".....even slight penetration is sufficient and emission is unnecessary."
On analysing the testimony of PW1 - Prosecutrix in the light of medical evidence, biological and serological evidence, gynaecological examination from portion 'X' to 'X', Ex. PW6/A on the MLC Ex. PW7/A of the prosecutrix and MLC of the accused Ex. PW7/B, as discussed hereinbefore, the act of performing of sexual intercourse activity by complete penetration of the penis with emission 52 of 69 53 FIR No. 34/11 PS - Sultan Puri of semen or by partial penetration of the penis with emission of semen, within the 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 Jakir Malik with PW1 - Prosecutrix without her consent.
20. Learned Counsel for the accused submitted that he prosecutrix has specifically deposed that she did not disclose regarding intimidation which had been given to her by the accused prior to 26/01/2011 nor the same was disclosed by her to any teacher in the school or to any friend.
I have carefully perused and analysed the evidence on record.
It is a settled principle that the 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.
It is pertinent to reproduce the relevant part of cross examination of PW1 - prosecutrix which reads as under : 53 of 69 54 FIR No. 34/11 PS - Sultan Puri "On 26/01/2011, I went alongwith Jakir on a motorcycle. The no. of the motorcycle I do not recollect. Thereafter, we had returned on 27/01/2011. I do not know the place where we had stayed."
"I had not disclosed to my parents regarding the intimidation which had been given to me by the accused prior to 26/01/2011 nor the same was disclosed by me to my teacher in the School nor to my any friend (saheli). It is wrong to suggest that I had not disclosed regarding the intimidation given to me by the accused Zakir prior to 26/01/2011, to my parents or teachers or friends, as no such intimidation was ever given by accused Zakir."
"Q. Did you disclose to your parents about the factum of your going with accused on 26/01/2011 on his motorcycle and of returning on 27/01/2011 and about the place where you had stayed during this period?
Ans. I had disclosed such fact to my parents. Q. Did your parents after 26/01/2011 lodged any report with the Police or they told any relative of the accused Zakir or had called Zakir to inquire as to where he had gone with you before 02/02/2011? Ans. No. It is wrong to suggest that I had taken (gone) with my own my free will on 26/01/2011 with accused Zakir. I had complained to my parents of my having taken without my free will on 26/01/2011 with accused Zakir. No action was taken by my parents on such complaint made by me to them."
From above it is clearly indicated that the testimony of PW1
- prosecutrix is clear, natural, cogent and reliable. She had disclosed the 54 of 69 55 FIR No. 34/11 PS - Sultan Puri facts of her taking away by accused Jakir on 26/01/2011 without her free will, to her parents. Had she not disclosed all the facts inclusive of intimidation given to her by accused prior to 26/01/2011 to her parents, then there was no necessity for giving the suggestion to her in regard, of intimidation given to her by accused prior to 26/01/2011, which she negated. At the cost of repetition, the said suggestion reads as : "It is wrong to suggest that I had not disclosed regarding the intimidation given to me by the accused Zakir prior to 26/01/2011, to my parents or teachers or friends, as no such intimidation was ever given by accused Zakir."
In the circumstances, there is no substance in the plea so raised by the Learned Counsel for the accused.
21. Learned Counsel for the accused submitted that the prosecutrix is not at all reliable in view of the facts and circumstances that rape has not at all established by the prosecutrix. Doctor did not give any opinion that prosecutrix was victim of offence of rape. The whole evidence shows the absence of injury on the person and on private parts of prosecutrix.
I have carefully perused and analysed the evidence on 55 of 69 56 FIR No. 34/11 PS - Sultan Puri record.
At the cost of repetition, 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."
(Underlined by me) As discussed hereinbefore, PW7 - Dr. Ajay Kumar, CMO, SGM Hospital, Delhi, proved the MLC of the prosecutrix Ex. PW7/A and PW6 - Dr. Munish Wadhawan, Specialist, SGM Hospital, Delhi 56 of 69 57 FIR No. 34/11 PS - Sultan Puri proved the gynaecological examination from portion 'X' to 'X' Ex. PW6/A on the MLC Ex. PW7/A. At the cost of repetition the testimonies of PW7 - Dr. Ajay Kumar and PW6 - Dr. Munish Wadhawan reads as under : PW7 - Dr. Ajay Kumar, CMO, SGM Hospital, Delhi who examined patient/prosecutrix and deposed that on 19/02/2011, he examined patient/prosecutrix (name withheld) D/o Ram Bharose, Age - 12 years, Female who was brought to Hospital with alleged history of kidnapping and sexual assault between 02/02/2011 till 18/02/2011 night by somebody when she came back her house as told by brought by. On local examination there is no any evidence of fresh external injury seen all over the body. After examination the patient was referred to SR Gynae for opinion and evaluation. He prepared the MLC. The same is Ex. PW7/A bearing his signature at point 'A'.
PW6 Dr. Munish Wadhavan, Specialist SGM Hospital who proved the gynaecological examination of the prosecutrix as was conducted by Dr. Rajni, S.R. Gynae. from portion 'X' to 'X', Ex. PW6/A 57 of 69 58 FIR No. 34/11 PS - Sultan Puri on the MLC of the prosecutrix (Ex. PW7/A), bearing signature of Dr. Rajni at point 'A'.
Emission of semen 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 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.
58 of 69 59 FIR No. 34/11 PS - Sultan Puri PW1 - prosecutrix during her examinationinchief has specifically deposed that : "Accused Jakir is present in the Court today (Correctly Identified). He has stated his name as Anshuman. He has force (forced) me to sit on the motorcycle and he has forced me to smell me some intoxicated substance, which made me semi conscious situation and he has taken me to Nihal Vihar in a room. Where he has committed rape upon me. I insisted him that I have to go to my parents house but he did not acceded (accede) my request and he forcibly sexually assaulted."
Inspite of incisive crossexamination of PW1 - prosecutrix nothing material could be elicited during her crossexamination. Her version on the core spectrum of the crime has remained intact.
In the circumstances, there is no substance in the plea so raised by the Learned Counsel for the accused.
22. Learned Counsel for the accused submitted that according to the prosecution case the prosecutrix remained in the company of the accused for sufficient time i.e. 16 days. For first 6 days she remained in the company of the accused at Nihal Vihar. Then she went to Hathras on 59 of 69 60 FIR No. 34/11 PS - Sultan Puri 02/02/2011.
I have carefully perused and analysed the evidence on record.
The Learned Counsel for the accused failed to indicate any material on the record as to the basis for raising the said plea that : "According to the prosecution case the prosecutrix remained in the company of the accused for sufficient time i.e. 16 days. For first 6 days she remained in the company of the accused at Nihal Vihar. Then she went to Hathras on 02/02/2011."
With due respect, it appears that Learned Counsel for the accused has misread the evidence on the record. The case of the prosecution is that on 02/02/2011, at about 7:30 a.m., prosecutrix was kidnapped by the accused while she was going to her School with intent or knowing that she may be forced or seduced to illicit intercourse with him and was taken at Nihal Vihar, Delhi in a room where he committed rape upon her and then she was taken to his native place by the accused and that on 18/02/2011 the recovery of PW1 - prosecutrix was made while sitting on a bench with accused Jakir at Pura Railway Station at the 60 of 69 61 FIR No. 34/11 PS - Sultan Puri pointing out of Sh. Dhyan Singh, her uncle vide recovery memo Ex. PW1/A. In the circumstances, the theory "Prosecutrix remained in the company of the accused for sufficient time i.e. 16 days. For first 6 days she remained in the company of the accused at Nihal Vihar. Then she went to Hathras on 02/02/2011" attempted to be propounded as the case of prosecution/according to prosecution, falls flat to the ground.
In the circumstances, there is no substance in the plea so raised by the Learned Counsel for the accused.
23. Learned Counsel for the accused submitted that prosecutrix was allegedly taken on motorcycle from Sultan Puri to Nihal Vihar. She has deposed that she did not raise any alarm when she was made to sit on motorcycle on 02/02/2011 or at the place of Nihal Vihar where she was taken by accused Jakir. She also deposed that it is correct that she was taken from thorough fare and busy roads. She further deposed that she stayed for about 56 days at Nihal Vihar with the accused and during this period she did not tell to any family members of the accused or any of 61 of 69 62 FIR No. 34/11 PS - Sultan Puri their neighbours. She further deposed that she alongwith the accused came on the Railway Station and from Delhi to Hathras. She travelled in a train but she neither raise any alarm nor she disclosed to any of the passengers at Railway Station on in the train. She has also deposed that she stayed with the accused at the native place of accused for two days but she did not tell any of the facts to mother of the accused nor any neighbours then she had come to Railway Station alongwith the accused from native village of the accused and she was found sitting at Railway Station alongwith the accused. There also she did not mention to any person regarding her kidnapping or committing of offence upon her. She has specifically deposed that she did not raise any alarm.
I have carefully perused and analysed the evidence on record.
During her examinationinchief PW1 - prosecutrix has specifically deposed that : "He has force (forced) me to sit on the motorcycle and he has forced me to smell me some intoxicated substance, which made me semi conscious situation and he has taken me to Nihal Vihar in a room. Where he has committed rape upon me. I insisted him that I have to go to my parents house but he did not acceded (accede) my request and he forcibly sexually assaulted."
62 of 69 63 FIR No. 34/11 PS - Sultan Puri When a minor girl is made semi conscious by forcing her to smell some intoxicated substance, one is left wandering as to how it is expected that she would gather the courage in such adverse circumstances to raise hue and cry.
During her crossexamination PW1 - prosecutrix has categorically deposed that : "I was going alone to the School. I had gone a little distance away from my house. It is correct when I left my house and had gone little distance away many houses were there. It is correct that public persons were passing on the way from which I was going to School. I could not raise any alarm as I had been intimidated and had been induced (behla phusla kar) by the accused when he had come on the motorcycle."
"I had not gone of my own free will on the motorcycle of accused Zakir on 02/02/2011.
Q. Did you raise any alarm when you are being taken by accused Zakir on motorcycle on 02/02/2011 against your wishes? Ans. I did not raise any alarm as I was threatened and intimidated by accused."
"I cannot quantify the distance from the place where I was forcibly made to sit on the motorcycle on 02/02/2011 and of the place at Nihal Vihar where I was taken by accused Zakir. It took about half an hour for going from the place where I was forcibly made to sit on the
63 of 69 64 FIR No. 34/11 PS - Sultan Puri motorcycle on 02/02/2011 and of the place at Nihal Vihar where I was taken by accused Zakir. I cannot tell the topography of the roads through which I was taken on motorcycle from the place where I was forcibly made to sit on the motorcycle on 02/02/2011 and of the place at Nihal Vihar where I was taken by accused Zakir. It is correct that the roads through which I was taken was a thorough fare and a busy road. I do not know as to how manly traffic signal fell on the way from the place where I was forcibly made to sit on the motorcycle on 02/02/2011 and of the place at Nihal Vihar where I was taken by accused Zakir. I did not raise any alarm at the time on the route from the place when I was forcibly made to sit on the motorcycle on 02/02/2011 and of the place at Nihal Vihar where I was taken by accused Zakir.
Q. Were there residential houses in the vicinity of the room where you were taken at Nihal Vihar regarding which you have deposed in your examination in chief.
Ans. I did not notice the same.
I do not know as to whether the motorcycle was parked outside at the road or was taken inside a house, when I was taken at a room in Nihal Vihar. I do not know where I alighted from the motorcycle while I was taken at a room in Nihal Vihar. I do not know the length, breadth and dimension of the room where I was taken at Nihal Vihar nor I know as to how many rooms were there in the house. We had stayed for about 5 to 6 days at Nihal Vihar. I do not know the name of the village where I was taken after staying at Nihal Vihar. We had stayed for about one or two days at the native village of the accused Zakir. We had come to the railway station after staying about 1 or 2 days at the native village of accused Zakir. I do not know the time at which we had reached at the railway station. I do not know the date of my 64 of 69 65 FIR No. 34/11 PS - Sultan Puri reaching at Delhi. It is correct that from the place, from where myself and accused had been brought by the police, it was a railway station. It is correct that at the railway station my uncle (Chacha) and police had reached. It is correct that at the railway station myself and accused were found sitting. It is correct that at the railway station besides us many other passengers were waiting for the trains. I did not go to buy the railway tickets but the accused Zakir brought the ticket. We had gone by train from Nihal Vihar, Delhi to the native village of accused Zakir. I do not know as to how much time it took to reach at the native village of the accused by train from Nihal Vihar, Delhi. It is correct that many passengers were there in the train when we had gone to the village from Nihal Vihar Delhi. I did not tell to any passenger in the train on the way that I had been taken forcibly by accused Zakir while going to the village from Nihal Vihar, Delhi. I had not told any person on the railway station at Delhi while going to the village of accused Zakir that I had been taken forcibly by accused Zakir. It is correct that I had not told anyone in the neighbourhood of the room of Nihal Vihar where I was taken by accused Zakir, nor I had told any public person while going from Nihal Vihar Delhi to Railway station or at railway station Delhi or in the train from Railway station Delhi to the native village of accused Zakir nor at the native village nor any family member of accused Zakir at native village, that I had been forced by accused Zakir to accompany him."
Further failure on her part to raise hue and cry at the time enroute from Sultan Puri to Nihal Vihar at the time of staying at Nihal Vihar at the time of taking to native village at the Railway Station and at 65 of 69 66 FIR No. 34/11 PS - Sultan Puri the time of returning to Delhi at the Railway Station, the reasons for the same have been explained by PW1 - prosecutrix that she was threatened and intimidated by the accused at the time when she was forcibly taken by the accused on motorcycle on 02/02/2011.
Sight cannot be lost of the fact that a minor girl aged about 12 years (to be exact 11 years 09 months and 16 days) when was forcibly enticed/taken away by accused and was threatened and intimidated, such threat and intimidation caused alarm to her and made her timid and fearful due to which she could not gather the courage to raise any hue and cry at any place be it at Nihal Vihar or at the Railway Station or at the native place of the accused. As she continued to be under the dominance of the accused Jakir she despite sufferance of onslaught physically and mentally since 02/02/2011 by committal of rape upon her by the accused kept silent due to terrorization of the accused. She took it as her fate to suffer in silence, had there been no recovery of her on 18/02/2011 vide recovery memo Ex. PW1/A. In the circumstances, there is no substance in the plea so raised by the Learned Counsel for the accused.
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24. Learned Counsel for accused referred to the cases and are reported as 'State of NCT of Delhi Vs. Shiva & Ors.' MANU/DE/0986/2012; 'Radhu Vs. State of Madhya Pradesh', (2007) 12 SCC 57 and 'Sehi Ram Vs. State of H.P.', 2011(3)Crimes756.
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 voyage has to be carefully applied, on a principle of law, in a subsequent voyage".
25. In view of above and in the circumstances, prosecution has thus categorically proved beyond shadows of all reasonable doubts that on 02/02/2011 at about 7:30 a.m. accused Jakir Malik kidnapped PW1 - prosecutrix aged about 12 years (to be more exact 11 years, 09 months 67 of 69 68 FIR No. 34/11 PS - Sultan Puri and 16 days) while she was going to her School, with intent or knowing that she may be forced or seduced to illicit intercourse with him and he took her at Nihal Vihar, Delhi in a room where he forcibly committed rape upon her without her consent and he also cheated PW1 - prosecutrix by personation by stating his name as Anshuman and also as Prince Chaudhary and that he was Hindu by caste and belonged to Jat community.
I accordingly hold accused Jakir Malik guilty for the offences punishable u/s 363/366/419/376 IPC and convict him thereunder.
26. In view of above discussion, I am of the considered opinion that as far as the involvement of the accused Jakir Malik in the commission of the offences u/s 363/366/419/376 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 Jakir Malik beyond shadows of all reasonable doubts and there is no room for hypothesis, consistent with that of innocence of accused Jakir Malik. I, therefore, hold accused Jakir Malik guilty for the offences punishable u/s 363/366/419/376 IPC and convict 68 of 69 69 FIR No. 34/11 PS - Sultan Puri him thereunder.
Announced in the open Court (MAHESH CHANDER GUPTA) on 15th Day of October, 2013 Additional Sessions Judge Special Fast Track Court (N/W District), Rohini, Delhi 69 of 69