Delhi District Court
State vs . 1. Mohd. Ishtar @ Istak on 13 November, 2013
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FIR No. 187/11
PS - Kanjhawala
IN THE COURT OF SH. MAHESH CHANDER GUPTA :
ADDITIONAL SESSIONS JUDGE : SPECIAL FAST TRACK
COURT : NORTHWEST DISTRICT : ROHINI : DELHI
SESSIONS CASE NO. : 176/13
Unique ID No. : 02404R0296872011
State Vs. 1. Mohd. Ishtar @ Istak
S/o Mohd. Taslil
R/o C485, Meer Vihar,
Madan Pur Dabas,
Delhi.
2. Mohd. Mustkin @ Mustkim
S/o Aabas
R/o C594, Meer Vihar
Madan Pur Dabas
Delhi.
FIR No. : 187/11
Police Station : Kanjhawala
Under Sections : 376(2)(g)/506 IPC
Date of committal to session Court : 04/11/2011
Date on which judgment reserved : 26/10/2013
Date on which judgment announced : 13/11/2013
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FIR No. 187/11
PS - Kanjhawala
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 01/08/2011, SI Rajesh Kumar on receipt of DD No. 26A in the Police Station Kanjhawala met the complainant/prosecutrix and made inquiries from her who told about the committal of galat kaam with her, on which she, accompanied by L/Constable Anita, was taken to Sanjay Gandhi Hospital where her medical examination was got conducted vide MLC No. 10737/11, on the MLC the doctor has endorsed, "Brought for medical examination as victim in case of sexual assault today". The sealed pullindas handed over by doctor after her medical examination were taken into Police possession. Thereafter, prosecutrix accompanied by L/Constable Anita came back to the Police Station, where NGO Anuradha was also found present. In the presence of NGO Anuradha, prosecutrix (named withheld being a case u/s 376 IPC) W/o Ram Milan R/o Umed Master Ka Makan near Hira Lal School, Madan 2 of 84 3 FIR No. 187/11 PS - Kanjhawala Pur Dabas, Delhi, permanent address ; Dev Raha, PS - Jatara, District Teekamgarh (M.P.) made the statement which is to the effect that, she alongwith her family lives on rent and does the labour work (Mehnat Mazdoori Ka Kaam) with her husband. Today on 01/08/2011 she was at her house only as for the last 23 days she was not getting any work and today at about 11:0012:00 noon in the day time she was going to collect her balance wages and was passing through 35 Foota road and when on that road she reached near Masjid situated on that road, on the way, two persons namely Mohd. Mustkim and Mohd. Ishtar who does the masonry work, to whom she was knowing previously met, who after alluring her, took her in that house where they used to work (Aaj Dinank 01/08/2011 Ko Main Ghar Par Hi Thi Kyonki Pichle Do Teen Dino Se Koi Kaam Nahi Mil Raha Tha Main Aaj Waqt Kareeb 11:0012:00 Baje Din Apni Pehle Ki Bakaya Mazdoori Lene Ke Liye 35 Foota Road Par Ja Rahi Thi Ki Jab Main Us Road Par Stith Masjid Ke Paas Pahunchi To Mujhe Raste Mei Do Shakhs Jinke Naam Mohd. Muskeen Va Mohd. Ishtar Hain Jo Dono Raaj Mistry Ka Kaam Karte Hain Va Jinko Main Pehle Se Jaanti Hu Mujhe Mile Aur Behla Fusla Kar Mujhe Us Ghar Mei Le Gae Jahan Ye Dono Kaam Karte The) and where firstly Mustkim and then Mohd.
3 of 84 4 FIR No. 187/11 PS - Kanjhawala Ishtar committed galat kaam with her and when she tried to save herself from them, on which Mustkim pressed her mouth and threatened if she tried to scream then they will kill her and thereafter, when they turn by turn had committed galat kaam with her, then Mohd. Ishtar threatened her to go silently to her house if she tried to disclose the incident to anyone, he will kill her (Jahan Par Pehle Mustkin Ne Fir Mohd. Ishtar Ne Mere Sath Galat Kaam Kiya Jab Maine Inse Bachne Ki Koshish Ki To Mustkim Ne Mera Muh Daba Diya Aur Dhamki Di Ki Yadi Chillane Ki Koshish Ki To Jaan Se Maar Denge Iske Baad Jab In Dono Ne Bari Bari Mere Sath Galat Kaam Kar Liya To Mohd. Ishtar Ne Kaha Ki Ja Chup Chap Ghar Chali Ja Yadi Tune Kisi Se Batane Ki Koshish Ki to Jaan Se Maar Dunga) and she from there came to her house and when she had reached at her house, her husband had also come to house for eating the food and she told all about the incident to her husband (Mai Wahan Se Chup Chap Apne Kamre Par Aa Gai Jab Mai Ghar Aai To Mera Gharwala Bhi Khane K Liye Kamre Par Aaya Hua Tha Maine Apni Aap Beeti Apne Gharwale Ko Batai). After too much thinking over the matter, thereafter her husband brought her to the Police Station at about 5:45 p.m. where she told all about the incident (Jo Kaafi Vichar Karne 4 of 84 5 FIR No. 187/11 PS - Kanjhawala Ke Baad Mera Pati Mujhe Waqt Kareeb 05:45 Baje Sham Thana Le Kar Aaya Jahan Bhi Maine Aap Beeti Batai). From there she alongwith Lady Constable was sent to Sanjay Gandhi Hospital and her medical examination was got conducted and after her medical examination she has come back to the Police Station at about 11:15 p.m. where her statement has been recorded. She has heard her statement and is correct. On the basis of the statement, from the inspection of MLC and the circumstances on finding that offences u/s 376/506/34 IPC appeared to have been committed, the case was got registered and the investigation was proceeded with. During the course of investigation the site plan of the place of incident was prepared at the instance of prosecutrix. On the pointing out of the prosecutrix both the accused Mohd. Ishtar @ Ishtak and Mohd. Mustkin @ Mustkim were arrested. Their medical examinations were got conducted and the sealed pullindas handed over by the doctor after their medical examinations were taken into Police possession and were deposited in the Malkhana. Section 376 (2)(g) IPC was added in the case. The sealed exhibits were sent to FSL.
Upon completion of necessary further investigation challan for the offences u/s 376(2)(g)/506 IPC was prepared against accused 5 of 84 6 FIR No. 187/11 PS - Kanjhawala Mohd. Ishtar @ Ishtak and Mohd. Mustkin @ Mustkim and was sent to the court for trial.
2. Since the offence u/s 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 u/s 209 Cr.P.C.
3. Upon committal of the case to the Court of Session, after hearing of charge prima facie a case u/s 376(2)(g)/506 IPC was made out against accused Mohd. Ishtar @ Ishtak and Mohd. Mustkin @ Mustkim. Charge was framed accordingly which was read over and explained to the accused to which they pleaded not guilty and claimed trial.
4. In support of its case prosecution has produced and examined 14 witnesses. PW1 - Prosecutrix, PW2 - Ram Milan, PW3 - Dr. Brijesh Singh, CMO, SGM Hospital, Sultan Puri, Delhi, PW4 - ASI Ashok Kumar, PW5 - HC Rajbir Singh, PW6 - Constable Dheeraj, PW7
- Dr. Aditi, Senior Resident, SGM Hospital, Delhi, PW8 - Mashur 6 of 84 7 FIR No. 187/11 PS - Kanjhawala Ansari, PW9 - Constable Rohtash, PW10 - SI Rajesh Kumar, PW11 - Constable Vijay Kumar, PW12 - W/Constable Anita, PW13 - Sh. Sunil Gupta, Learned MM, NorthEast, Karkardooma Courts, Delhi and PW14
- Sh. V. Shankarnarayanan, SSO, FSL, Rohini, Delhi.
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 statement made to the police Ex. PW1/A, bearing her right thumb impression at point 'A', her statement recorded u/s 164 Cr.P.C. Ex. PW1/B, bearing her right thumb impressions at points 'A' & 'B', arrest memos of accused Mustkin and Ishtar Ex. PW1/C & Ex. PW1/D respectively, bearing her right thumb impression at points 'A' & 'B', site plan Ex. PW1/E and identified and proved her clothes i.e. a blouse of black colour Ex. P1 and petticoat of red colour Ex. P2.
PW2 Ram Milan is the husband of the prosecutrix who deposed regarding the facts disclosed to him by his wife/prosecutrix and deposed on the investigational aspects which he joined and observed.
7 of 84 8 FIR No. 187/11 PS - Kanjhawala PW3 Dr. Brijesh Singh, CMO, SGM Hospital, Sultan Puri, Delhi who conducted the medical examination of prosecutrix on 01/08/2011 from portion 'A' to 'A1' on the MLC Ex. PW3/A, signed by him at point B. He further deposed that on 02/08/2011 he conducted the medical examination of Ishtak vide MLC Ex. PW3/B, signed by him at point 'A' and also opined that there was nothing to suggest that the person/accused Ishtak cannot perform the act of sexual intercourse. He further deposed that on 02/08/2011 he also conducted the medical examination of Mustkim vide MLC Ex. PW3/C, signed by him at point 'A' and also opined that there was nothing to suggest that the person/accused Mustkim cannot perform the act of sexual intercourse.
PW4 ASI Ashok Kumar is the Duty Officer who proved the copy of the DD No. 26A dated 01/08/2011 Ex. PW4/A, copy of the FIR Ex. PW4/B, signed by him at point 'A' and his endorsement Ex. PW4/C on the rukka, signed by him at point 'A'.
PW5 HC Rajbir Singh is the MHC(M) who proved the 8 of 84 9 FIR No. 187/11 PS - Kanjhawala copies of the relevant entries of register no. 19 Ex. PW5/A, Ex. PW5/B & Ex. PW5/C, copy of RC No. 124/21 Ex. PW5/D and copy of the acknowledgment receipt of the FSL Ex. PW5/E. PW6 Constable Dheeraj who on 01/08/2011 joined investigation with IO SI Rajesh Kumar and deposed that on 01/08/2011, he was posted as Constable in Police Station Kanjhawala. On that day in the night at about 11:45 p.m. he alongwith SI Rajesh, Constable Harinder, Complainant (name withheld) and her husband remained in the investigation of the present case and reached at the spot i.e. 35 foota road near Bali Masjid, Madanpur Dabas, Meer Vihar, Delhi where complainant had pointed out the place of occurrence. IO prepared the site plan. There two accused persons namely Mohd. Mustkim and Mohd. Ishtar were apprehended at the instance of the complainant, they were interrogated and arrested. Accused were taken to SGM Hospital, Mangol Puri where they were medically examined. After medical examination, doctor handed over the exhibits of both the accused and he (PW6) handed over the same to the IO. Same were seized vide memo Ex. PW6/A and Ex. PW6/B respectively. Thereafter, accused were sent 9 of 84 10 FIR No. 187/11 PS - Kanjhawala to Police lock up. Both the accused are present in the Court.
PW7 Dr. Aditi who on 01/08/2011 gynecologically examined the prosecutrix and proved the gynecological examination at portion 'X' to 'X' Ex. PW7/A on the MLC Ex. PW3/A. PW8 Mashur Ansari who deposed that he is the owner of house no. C129, Mir Vihar, Madan Pur Dabas, Delhi where the alleged incident (had) taken place. At that time the house C129, Mir Vihar, Madan Pur Dabas, Delhi was under construction and the construction was going on under the supervision of Contractor (Thekedar) Manjoor, he is now not available.
PW9 - Constable Rohtash has deposed that on the intervening night of 0102/08/2011, he was posted at PS - Kanjhawala. On that day he was on Emergency Duty from 8:00 p.m. to 8:00 a.m. On that day at about 12:45 a.m. (night) DO has given him copy of FIR and original Tehrir to hand over the same to IO SI Rajesh Kumar who was present at 35 foota road near Masjid Madan Pur Dabas. He went there 10 of 84 11 FIR No. 187/11 PS - Kanjhawala and found that two persons were apprehended by Constable Harender and Constable Dheeraj alongwith SI Rajesh Kumar. He handed over copy of FIR and original Tehrir to SI Rajesh Kumar to whom further investigation was marked.
PW10 - SI Rajesh Kumar is the Investigating Officer (IO) of the case who deposed that on 01/08/2011, DD No. 26A Ex. PW4/A was handed over to him. Complainant/prosecutrix met her in the Police Station with her husband and he made inquiries from her. She was got medically examined from SGM Hospital and the sealed exhibits handed over by the concerned Doctor after her medical examination were taken into Police possession vide seizure memo Ex. PW10/A signed by him at point 'A'. NGO Anuradha was called for the counselling of the prosecutrix. The statement of prosecutrix Ex. PW1/A was recorded and attested her thumb impression at point 'A' bearing his signature at point 'B' and prepared Rukka Ex. PW10/B signed by him at point 'A'. Rukka was handed over to Duty Officer for registration of FIR. Thereafter, he alongwith complainant (name withheld), her husband, Constable Dheeraj and Constable Harender reached at the spot i.e. newly 11 of 84 12 FIR No. 187/11 PS - Kanjhawala constructed house 35 foota road near Balli Masjid, Madanpur Dabas, Meer Vihar, Delhi and there at the instance of the complainant, he prepared the site plan Ex. PW1/F, bearing his signature at point 'B'. There two accused Mohd. Mustkim and Mohd. Ishtar were apprehended at the instance of complainant. They were interrogated and arrested vide arrest memo already Ex. PW1/C and Ex. PW1/D, their personal searches were conducted vide memo Ex. PW10/C and Ex. PW10/D, bearing his signature at points 'A'. Their disclosure statements were recorded which are Ex. PW10/E and Ex. PW10/F, bearing his signature at points 'A'. Accused were taken to SGM Hospital for medical examination. Complainant was instructed to reach in PS in the noon. Both the accused were medically examined and after their medical examination, doctor handed over the pullindas containing their exhibits which were seized vide memo Ex. PW6/A and Ex. PW6/B, bearing his signature at points 'B'. Thereafter, they came back to PS and the case property was deposited in the Malkhana and accused persons were sent to Police lockup. At about 12:00 noon, on 02/08/2011, complainant alongwith her husband came into PS. Accused were also taken out from the lockup. They reached in the Rohini Courts, accused were produced before the 12 of 84 13 FIR No. 187/11 PS - Kanjhawala Court and were sent to JC. He moved an application for recording statement of complainant/ prosecutrix u/s 164 Cr.P.C. which is Ex. PW10/G, bearing his signature at point 'A'. Her statement got recorded and thereafter he obtained the copy of the same vide application Ex. PW10/H, bearing his signature at point 'A'. He recorded the statement of witnesses. On 09/08/2011, the exhibits were sent to FSL through Constable Vijay who after depositing the same in FSL has deposited the receipt with MHC(M). He recorded his statement. Both accused are present in the Court (correctly identified). After completing the investigation, challan was prepared and filed in the Court. Later on FSL result was collected and filed in the Court. The same is Ex. PX and Ex. PX1.
PW11 - Constable Vijay Kumar who deposed that on 09/08/2011 he was posted as Constable in PS - Kanjhawala. On that day on the instructions of IO he took five pullindas and three sample seals from the MHC(M) for depositing in FSL vide RC No. 124/21. He deposited the same in the FSL, Rohini and thereafter deposited the acknowledgment receipt with the MHC(M).
13 of 84 14 FIR No. 187/11 PS - Kanjhawala PW12 - W/Constable Anita who deposed that on 01/08/2011, SI Rajesh handed over to her complainant / prosecutrix (name withheld) W/o Ram Milan for her medical examination. She took her in SGM Hospital where she (prosecutrix) was medically examined and after medical examination, Doctor handed over the pullinda containing the exhibits. They came back to the Police Station and she handed over pullinda to IO which were seized vide memo Ex. PW10/A, bearing her signature at point 'B' and also deposed that the IO recorded the statement of complainant in the presence4 of NGO Anuradha and got the FIR registered.
PW13 - Sh. Sunil Gupta, Learned MM, NorthEast, Karkardooma Courts, Delhi who recorded the statement of the prosecutrix u/s 164 Cr.P.C. and proved the proceedings Ex. PW1/B (running into two pages) bearing his signatures at points 'C' and 'D' and that of the prosecutrix at points 'A' and 'B' and also proved his certificate regarding the true and correct account of the statement Ex. PW13/A bearing his signature at points 'A' and 'B' and also proved the 14 of 84 15 FIR No. 187/11 PS - Kanjhawala endorsement regarding identification of the prosecutrix by IO SI Rajesh signed by him (SI Rajesh) at point 'E' and proved his endorsement Ex. PW13/B signed by him at point 'A' vide which the copy of the statement u/s 164 Cr.P.C. was supplied to the IO.
PW14 - Sh. V. Shankarnarayanan, SSO, FSL, Rohini, Delhi who proved the Biological and Serological Reports Ex. PX and Ex. PX1 respectively signed by him at points 'A'.
The testimonies of the prosecution witnesses shall be dealt with in detail during the course of appreciation of evidence.
6. Statements of both the accused persons namely Mohd. Ishtar and Mohd. Mustkeen were recorded u/s 313 Cr.P.C. wherein they pleaded innocence and false implication and opted to lead defence evidence. They examined DW1 - Manoj Shah, DW2 - Mohd. Afzal and DW3 - Abdul Rashid in their defence.
DW1 - Manoj Shah who deposed that on 01/08/2011, he was present at his house and in the house opposite to his house, Mustakim 15 of 84 16 FIR No. 187/11 PS - Kanjhawala and other labourer were working. At about 3:00 p.m. two Police officials came there and told Mustakim as to whatever money he has taken, let he give it back and the matter will be settled here only and thereafter Police took away Mustakim from there. The transaction of paying and giving of money between labourer & Mistry always go on (Lena Dena Laga Rehta Hai).
DW2 - Mohd. Afzal who deposed that he knows prosecutrix (name withheld) and she had worked with him as he was working as a Maison. He does not remember the date, month and year. One day, prosecutrix (name withheld) came to him for work at about 9:00 a.m. and she worked till 11:00 a.m. and thereafter she told that she wanted to go for taking her wages/money. After about 10 minutes she came back and she worked till lunch. But she did not attend the work after the lunch. He (DW2) does not know about prosecutrix (name withheld) as to what type of lady she was. He does not know why she did not return after the lunch hours.
DW3 - Abdul Rashid who deposed that on 01/08/2011, 16 of 84 17 FIR No. 187/11 PS - Kanjhawala construction work was going on at his house at C - 634, Mir Vihar, 8'' (foot) road. He was also sitting there. One lady came there whose name he does not know and talks were going on between that lady and Mohd. Mustakim & Mohd. Ishtar regarding the money. That lady was saying that if they will not pay the money that she will report the matter to the Police. This was happened around 11:15 a.m. He (DW3) remained there till 1:30 p.m. and thereafter he went for Namaz, when he came back (he came to) know that Police had taken away Mohd. Mustakim & Mohd. Ishtar. He went to the Police Station but Police did not allow him to talk with Mohd. Ishtar and Mohd. Mustakim and he was asked to go from the Police Station.
The testimonies of the defence witnesses shall be dealt with in detail during the course of appreciation of evidence.
7. Learned Counsel for the accused submitted that PW1 - prosecutrix (name withheld) in her statement recorded u/s 161 Cr.P.C. stated that she was known to both the accused persons and she had worked with the accused persons. Similar averments in the FIR to the effect that the complainant was in acquaintance with the accused persons 17 of 84 18 FIR No. 187/11 PS - Kanjhawala whereas in the crossexamination conducted on 12/12/2012 she has totally denied this very fact. The relevant portion of her cross examination is reproduced here as under : "It is wrong to suggest that I was previously knowing the accused persons..... I did not know the name of accused persons prior to date of incident."
Learned Counsel for accused further submitted that another important fact which casts a shadow of doubt about the veracity of testimony of PW1 and PW2 and make strength in the defence of accused persons is that PW1 - prosecutrix has admitted in her statement recorded u/s 161 Cr.P.C. that "she had worked with these persons." the relevant portion of her statement is being reproduced here as under : "MAIN IN DONO KO MOHD. MUSTKIM OR ISHTHAR KO KUSH MAHINE SE JANTI THI. IN SARDIYON MAIN MAINE 1012 DIN IN DONO KE SATH THEKEDAR KE LIYEN KAM IYA THA"
Learned Counsel for accused further submitted that the defence raised by the accused persons is that they are innocent and they were not involved in any such kind of act and the actual dispute was
18 of 84 19 FIR No. 187/11 PS - Kanjhawala regarding recovery of certain dues for which the accused persons were falsely implicated which gets strengthen from the fact that the accused persons also examined DW3 - Abdul Rashid who has specifically deposed "On 01/08/2011 construction work was going on at my house at C634, Meer Vihar, 8 ft. Road. I was sitting there, one lady came there whose name I do not know and talks were going on between that lady and Mohd. Mustkim and Mohd. Ishtar regarding money. That lady was saying that if they will not pay the money, then she will report the matter to the Police. This was happened around 11:15 a.m. I remained there till 1:30 p.m. and thereafter I went to Namaj."
Learned Counsel for accused further submitted that the fact relevant for consideration is that from the testimony of DW3 - Abdul Rashid, it is evident that the accused persons remained at his house where construction work was going on till 1:30 p.m. and perhaps thereafter also because as per deposition at 1:30 p.m. DW3 - Abdul Rashid had gone for Namaj whereas the PW1 has deposed that the alleged offence was committed at around 12:00 1:00 p.m. which is unimaginable.
19 of 84 20 FIR No. 187/11 PS - Kanjhawala Learned Counsel for accused further submitted that DW3 - Abdul Rashid has not been even crossexamined regarding the aforesaid aspect and there is no reason to disbelieve the testimony of DW3 who is very important and crucial witness.
Learned Counsel for accused further submitted that from the testimony of DW1 - Manoj Shah, it is proved that both the accused persons were working at the site till 3:00 p.m. as DW1 has specifically deposed that "On 01/08/2011 I was present at my house and in the house opposite to my house, Mustakim and other labourers were working. At about 3:00 p.m. two Police officials came there and told Mustakim as to whatever money he has taken, let he give back."
Learned Counsel for accused further submitted that DW2 - Mohd. Afjal who has been examined in defence witness is also important witness as the complainant had worked with him and he has specifically deposed that the complainant worked till lunck with him and thus by no stretch of imagination, the alleged story of committing the offence by the 20 of 84 21 FIR No. 187/11 PS - Kanjhawala accused persons between 12:00 - 1:00 p.m. can be assumed to be true and correct. The relevant portion of examinationinchief is reproduced here as under : "I know prosecutrix (name withheld). She had worked with me........ She worked till 11:00 a.m. and thereafter she told, she wanted to go for taking her wages/money. After about 10 minutes she came back and she worked till lunch."
It is clear from the testimony of DW2 Mohd. Afjal that the complainant remained at work site lunch and thus it cannot be assumed that the alleged offence might have been committed with the complainant as alleged by her during the time mentioned by her.
Learned Counsel for accused further submitted that there is no averment either in the FIR, in the statement recorded u/s 161 Cr.P.C. or during the course of examinationinchief and crossexamination of PW1 - prosecutrix that she raised any alarm/voice or made any attempt to make a noise against the so called alleged act of the accused persons which further disprove the testimony of PW1 and PW2.
Learned Counsel for accused further submitted that the 21 of 84 22 FIR No. 187/11 PS - Kanjhawala place as alleged by the complainant is a very crowded place and in the adjoining house, a number of people are residing as also admitted by PW1 - prosecutrix and it is really shocking that nobody came or complainant attempted to make a noise so that the local person can gathered at the spot.
Learned Counsel for accused further submitted that in the entire prosecution evidence, the prosecution has not examined even a single independent or impartial witness to prove the alleged offence against the accused persons. Though as per the averment of the complainant, the place where the offence was committed is very crowded and a number of persons are residing.
Learned Counsel for accused further submitted that in the FIR, it is mentioned that the accused persons had taken the complainant by alluring her whereas in the statement recorded she has stated that she was taken under threat.
Learned Counsel for accused further submitted that the 22 of 84 23 FIR No. 187/11 PS - Kanjhawala medical report also does not prove the alleged offence.
Learned Counsel for accused further submitted that PW1 - prosecutrix has stated in her examinationinchief that she was in acquaintance of both the accused persons and she had worked with them whereas PW2 - Sh. Ram Milan has stated in his crossexamination that "my wife was not working with Mohd. Ishtar and Mustkim and no wages lying balances of my wife with accused persons. Vol. She had gone to collect her wages from the other side where she had worked earlier and when she was passing through a gali, she was caught by Ishtaq and Mushtakin."
Learned Counsel for accused further submitted that otherwise also it is not believable by any stretch of imagination that the alleged rape could be committed by the accused persons in a very crowded place, in the board day light, time of alleged 12:00 - 1:00 p.m. and that to the alleged room.
Learned Counsel for accused further submitted that it is also 23 of 84 24 FIR No. 187/11 PS - Kanjhawala really shocking that the complainant did not make any resistance or hue and cry when she was allegedly to be taken by the accused to the room or when the alleged rape was committed with her.
Learned Counsel for accused further submitted that it is also not the case of the complainant that the accused persons were having any weapon which could be used to threat the complainant.
Learned Counsel for accused further submitted that in the entire evidence neither the number of room nor the place of occurrence of the incident has been mentioned. It is also not even mentioned as to how many labourers were working at the spot where the alleged offence was committed.
Learned Counsel for accused further submitted that PW8 - Mashur Ansari is the owner of the house where the alleged offence has been committed and during the course of his examinationinchief conducted on 01/11/2012, he has not uttered even a single word against the accused persons or about the commission of any alleged offence.
24 of 84 25 FIR No. 187/11 PS - Kanjhawala Learned Counsel for accused further submitted that besides this, there are various contradictions in the testimony of PW3 - Dr. Brijesh Singh, CMO Sanjay Gandhi Memorial Hospital who has stated in the crossexamination that his duty hours were 2:00 p.m. to 8:00 p.m. on 01/08/2011 whereas in examinationinchief he has stated that he examined the accused persons at about 1:50 a.m. and 2:00 a.m. Learned Counsel for accused further submitted that from the aforesaid facts and circumstances it is crystal clear that the accused persons have been falsely implicated in the above mentioned case and prayed for acquittal of the accused persons from all charges/offences in the interest of justice.
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 25 of 84 26 FIR No. 187/11 PS - Kanjhawala doubt.
9. I have heard the Learned Addl. PP for the State and the Learned Counsel for the accused and have also carefully perused the entire record.
10. The charge for the offences punishable u/s 376 (2)(g) and u/s 506(II) IPC against accused Mohd. Ishtar and Mohd. Mustkeen (Mustakim) is that on 01/08/2011 at about 11:00 a.m. to 12:00 noon they both in furtherance of their common intention had stopped "A"/prosecutrix (name withheld) near Maszid Mir Vihar, Madan Pur Dabas while the prosecutrix was going on 35 feeta road within the jurisdiction of PS - Kanjhawala & they both in furtherance of their common intention had taken her in a room near the above place and each of them, one after another gang raped her forcefully without her consent and against her will and that on 01/08/2011 at about 11:00 a.m. to 12:00 noon Mohd. Ishtar criminally intimidated the prosecutrix "A" W/o Ram Milan to kill her if she disclosed the incident of rape to any person.
26 of 84 27 FIR No. 187/11 PS - Kanjhawala
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 statement recorded u/s 164 Cr.P.C. on 02/08/2011 Ex. PW1/B has stated her age as 25 years.
PW1 prosecutrix in her particulars while recording her statement in the Court on 15/02/2012 has deposed her age as 25 years.
The said factum that the age of prosecutrix was 25 years as on the date of the alleged incident has not been disputed by the accused. Nor any evidence to the contrary has been produced or led on the record by the accused.
As the date of the alleged incident is 01/08/2011 and PW1 - prosecutrix in her statement recorded u/s 164 Cr.P.C. on 02/08/2011 Ex. PW1/B and in her particulars while recording her statement in the Court on 15/02/2012 has deposed her age as 25 years, on simple arithmetical 27 of 84 28 FIR No. 187/11 PS - Kanjhawala calculation, the age of PW1 prosecutrix comes to around 25 years as on the date of incident on 01/08/2011.
In view of above and in the circumstances, it stands established on the record that PW1 prosecutrix was aged around 25 years, as on the date of alleged incident on 01/08/2011. MEDICAL EVIDENCE OF THE PROSECUTRIX
13. PW3 Dr. Brijesh Singh, CMO, SGM Hospital, Sultan Puri, Delhi who conducted the preliminary medical examination of the prosecutrix in his examinationinchief has deposed that : "On 01/08/2011 at about 7:45 p.m. I examined prosecutrix (name withheld) S/o (D/o) Ram Milan brought by women (Woman) Constable Anita as prosecutrix (name withheld) was victim of sexual assault. I examined the patient and on local examination her vitals were found to be stable and there was no external injury visible. After preliminary examination the patient was referred to SR Gynae for further examination and opinion. I prepared the MLC Ex.PW3/A and my examination is from 'A' to 'A1' on MLC Ex. PW3/A signed by me at point 'B'.
28 of 84 29 FIR No. 187/11 PS - Kanjhawala There is nothing in the crossexamination of PW3 - Dr. Brijesh Singh so as to impeach his creditworthiness.
PW7 Dr. Aditi who gynecologically examined the prosecutrix in her examinationinchief has deposed that : "On 01/08/2011 one patient prosecutrix (name withheld) S/o (D/o) Ram Milan, Age - 25 years, Female was brought to Hospital with the alleged history of sexual assault at 12:00 p.m. the patient was initially examined by CMO on duty and thereafter, patient was referred to SR Gynae where I had examined the patient. On local examination no external injury mark were seen and abrasion 4 X 1 cm was seen on right leg anterolatel aspect. Two blood samples one EDT & one plain vial, two vulvul swabs, one anterior vaginal swab, one posterior vaginal swab, two lateral vaginal swab, vaginal scraping, pubic hair cutting and combing, nail scrapping both hands, nail cuttings both hands and clothes. My findings on the MLC is at Portion 'X' to 'X' of the MLC and the same is Ex. PW7/A bearing my signature at point 'A'.
Despite grant of opportunity, PW7 - Dr. Aditi was not cross examined on behalf of the accused.
In view of above and in the circumstances, the medical examination from point 'A' to 'A1' on the MLC Ex. PW3/A and the gynaecological examination from portion 'X' to 'X' on the MLC Ex.
29 of 84 30 FIR No. 187/11 PS - Kanjhawala PW7/A of PW1 - prosecutrix stands proved on the record. VIRILITY OF THE ACCUSED
14. PW3 Dr. Brijesh Singh, CMO, SGM Hospital, Sultan Puri, Delhi deposed that on 02/08/2011 he conducted the medical examination of Ishtak vide MLC Ex. PW3/B, signed by him at point 'A' and also opined that there was nothing to suggest that the person/accused Ishtak (Ishtar) cannot perform the act of sexual intercourse. He further deposed that on 02/08/2011 he also conducted the medical examination of Mustkin (Mustakim) vide MLC Ex. PW3/C, signed by him at point 'A' and also opined that there was nothing to suggest that the person/accused Mustkin (Mustakim) cannot perform the act of sexual intercourse.
There is nothing in the crossexamination of PW3 - Dr. Brijesh Singh so as to impeach his creditworthiness.
In view of above and in the circumstances, it stands proved on the record that accused Mohd. Ishtar and Mohd. Mustakim were capable to perform the act of sexual intercourse. BIOLOGICAL AND SEROLOGICAL EVIDENCE 30 of 84 31 FIR No. 187/11 PS - Kanjhawala
15. PW14 - Sh. V. Shankarnarayanan, SSO, FSL, Rohini, Delhi who proved the Biological and Serological Reports Ex. PX and Ex. PX1 respectively signed by him at points 'A'.
As per biological report Ex. PX the description of articles contained in parcel and result of analyses reads as under : DESCRIPTION OF ARTICLES CONTAINED IN PARCEL Parcel '1' : One sealed envelope sealed with the seal of "SGMH GNCT DELHI" containing e 'S1(a)(i)', 'S1(a)(ii)', 'S1(b)', 'S1(c)', 'S1(d)', 'S1(e)', 'S1(f)', 'S1(g)(i)', 'S1(g)(ii)', 'S1(h)', 'S1(i)', 'S1(j)', 'S1(k)', 'S1(l)', 'S1(m)', 'S1(n)', 'S1(o)' and 'S1(p)'.
Exhibit 'S1(a)(i)' : One blouse.
Exhibit 'S1(a)(ii)' : One dirty petticoat.
Exhibit 'S1(b)' : Dark brown foul smelling liquid.
Exhibit 'S1(c)' : Dark brown foul smelling liquid.
Exhibit 'S1(d)' : Cotton wool swab on a wooden stick.
Exhibit 'S1(e)' : Cotton wool swab on a wooden stick.
Exhibit 'S1(f)' : Cotton wool swab on a wooden stick.
Exhibit 'S1(g)(i)' : Two microslides having faint whitish smear.
& 'S1(g)(ii)'
Exhibit 'S1(h)' : Few strands of hair.
Exhibit 'S1(i)' : Strands of hair.
Exhibit 'S1(j)' : Cotton wool swab on a wooden stick.
Exhibit 'S1(k)' : Cotton wool swab on a wooden stick.
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Exhibit 'S1(l)' : Few nail clippings.
Exhibit 'S1(m)' : Few nail clippings.
Exhibit 'S1(n)' : Cotton wool swab on a wooden stick.
Exhibit 'S1(o)' : Cotton wool swab on a wooden stick.
Exhibit 'S1(p)' : Cotton wool swab on a wooden stick.
Parcel 'S2' : One sealed cloth parcel sealed with the seal of
"SGMH MANGOL PURI DELHI" containing exhibit 'S2'.
Exhibit 'S2' : One dirty underwear. Parcel 'S3' : One sealed cloth parcel sealed with the seal of
"SGMH MANGOL PURI DELHI" containing exhibit 'S3'. Exhibit 'S3' : Dark brown foul smelling liquid described as (Blood Sample).
Parcel 'S4' : One sealed cloth parcel sealed with the seal of "SGMH MANGOL PURI DELHI" containing exhibit 'S4'.
Exhibit 'S4' : One underwear. Parcel 'S5' : One sealed cloth parcel sealed with the seal of
"SGMH MANGOL PURI DELHI" containing exhibit 'S5'. Exhibit 'S5' : Dark brown foul smelling liquid described as 'Blood sample'.
32 of 84 33 FIR No. 187/11 PS - Kanjhawala RESULT OF ANALYSIS
1. Blood was detected on exhibits 'S1(b)', 'S1(c)', 'S1(d)', 'S1(e)', 'S1(f)', 'S1(p)', 'S3' and 'S5'.
2. Blood could not be detected on exhibits 'S1(a)(i)', 'S1(a)(ii)', 'S1(h)', 'S1(i)', 'S1(j)', 'S1(k)', 'S1(l)', 'S1(m)', 'S1(n)', 'S1(o)', 'S2' and 'S4'.
3. Human semen was detected on exhibits 'S1(a)(ii)', 'S1(d)', 'S1(p)' and 'S2'.
4. Semen could not be detected on exhibits 'S1(a)(i)', 'S1(e)', 'S1(f)', 'S1(g)(i)', 'S1(g)(ii)', 'S1(h)', 'S1(i)', 'S1(n)', 'S1(o)' and 'S4'.
5. Report of serological analysis in original is attached herewith. NOTE : Remnants of the exhibits have been sealed with the seal of 'VSN FSL DELHI'.
The serological report Ex. PX1 reads as under : Exhibits Species of origin ABO Grouping/Remarks Blood stains: 'S1(b)' Blood sample Sample blood was putrefied, hence no opinion. 'S1(c)' Blood sample Sample blood was putrefied, hence no opinion.
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'S1(d)' Cotton wool Human No reaction
swab
'S1(e)' Cotton wool Human No reaction
swab
'S1(f)' Cotton wool Human No reaction
swab
'S1(p)' Cotton wool Human No reaction
swab
'S3' Blood sample Sample blood was putrefied, hence no opinion.
'S5' Blood sample Sample blood was putrefied, hence no opinion.
Semen stains :
'S1(a)(ii)' Petticoat
Area II No reaction
'S1(d)' Cotton wool No reaction
swab
'S1(p)' Cotton wool No reaction
swab
'S2' Underwear No reaction
On careful perusal and analysis of the biological and serological evidence on record, it clearly shows that blood was detected on exhibit 'S1(b)' (Dark brown foul smelling liquid of the prosecutrix), exhibit 'S1(c)' (Dark brown foul smelling liquid of the prosecutrix), 34 of 84 35 FIR No. 187/11 PS - Kanjhawala exhibit 'S1(d)' (Cotton wool swab on a wooden stick of the prosecutrix), exhibit 'S1(e)' (Cotton wool swab on a wooden stick of the prosecutrix), exhibit 'S1(f)' (Cotton wool swab on a wooden stick of the prosecutrix), exhibit 'S1(p)' (Cotton wool swab on a wooden stick of the prosecutrix), exhibit 'S3' (Dark brown foul smelling liquid of accused Mohd. Ishtak) and exhibit 'S5' (Dark brown foul smelling liquid of accused Mohd. Mustakim; blood could not be detected on exhibit 'S1(a)(i)' (blouse of the prosecutrix), exhibit 'S1(a)(ii)' (Petticoat of the prosecutrix), exhibit 'S1(h)' (Few strands of hair of the prosecutrix), exhibit 'S1(i)' (Strands of hair of the prosecutrix), exhibit 'S1(j)' (Cotton wool swab on a wooden stick of the prosecutrix), exhibit 'S1(k)' (Cotton wool swab on a wooden stick of the prosecutrix), exhibit 'S1(l)' (Few nail clippings of the prosecutrix), exhibit 'S1(m)' (Few nail clippings of the prosecutrix), exhibit 'S1(n)' (Cotton wool swab on a wooden stick of the prosecutrix), exhibit 'S1(o)' (Cotton wool swab on a wooden stick of the prosecutrix), exhibit 'S2' (Underwear of accused Mohd. Ishtak) and exhibit 'S4' (Underwear of accused Mohd. Mustakim); Human semen was detected on exhibit 'S1(a)(ii)' (Petticoat of the prosecutrix), exhibit 'S1(d)' (Cotton wool swab on a wooden stick of the prosecutrix), 35 of 84 36 FIR No. 187/11 PS - Kanjhawala exhibit 'S1(p)' (Cotton wool swab on a wooden stick of the prosecutrix) and exhibit 'S2' (underwear of accused Mohd. Ishtak) and semen could not be detected on exhibit 'S1(a)(i)' (blouse of the prosecutrix), exhibit 'S1(e)' (Cotton wool swab on a wooden stick of the prosecutrix), exhibit 'S1(f)' (Cotton wool swab on a wooden stick of the prosecutrix), exhibit 'S1(g)(i)' and exhibit 'S1(g)(ii)' (Two microslides having faint whitish smear of the prosecutrix), exhibit 'S1(h)' (Few strands of hair of the prosecutrix), exhibit 'S1(i)' (Strands of hair of the prosecutrix), exhibit 'S1(n)' (Cotton wool swab on a wooden stick of the prosecutrix), exhibit 'S1(o)' (Cotton wool swab on a wooden stick of the prosecutrix) and exhibit 'S4' (underwear of accused Mohd. Mustakim). As per the serological report Ex. PX1 'Sample was putrefied hence no opinion' could be given on the exhibit 'S1(b)' (Dark brown foul smelling liquid (Blood Sample) of the prosecutrix), exhibit 'S1(c)' (Dark brown foul smelling liquid (Blood Sample) of the prosecutrix), exhibit 'S3' (Dark brown foul smelling liquid (Blood Sample) of accused Mohd. Ishtak) and exhibit 'S5' (Dark brown foul smelling liquid (Blood Sample) of accused Mohd. Mustakim).
On a conjoint reading of the medical evidence from portion 36 of 84 37 FIR No. 187/11 PS - Kanjhawala 'A' to 'A1' on the MLC Ex. PW3/A of PW1 prosecutrix as was conducted by PW3 Dr. Brijesh Singh, the gynaecological examination at portion 'X' to 'X' Ex. PW7/A on the MLC Ex. PW3/A of PW1 prosecutrix as was conducted by PW7 Dr. Aditi together with the MLC of accused Mohd. Ishtak Ex. PW3/B and that of MLC of accused Mohd. Mustkim Ex. PW3/C 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 case.
As per the biological report Ex. PX, with regard to the description of the articles contained in the parcels, it is noticed that Parcel No. 1 belongs to the prosecutrix which was seized vide seizure memo Ex. PW10/A dated 13/02/2013 and parcel nos. 2 & 3 belong to accused Mohd. Ishtak which were seized vide seizure memo Ex. PW6/A dated 12/09/2012 and parcel nos. 4 & 5 belong to accused Mohd. Mustakim which were seized vide seizure memo Ex. PW6/B dated 12/09/2012.
37 of 84 38 FIR No. 187/11 PS - Kanjhawala As per the biological report Ex. PX, prosecution has discharged its initial burden of proving the presence of Human semen on exhibit 'S1(a)(ii)' (Petticoat of the prosecutrix seized vide seizure memo Ex. PW10/A), exhibit 'S1(d)' (Cotton wool swab on a wooden stick of the prosecutrix seized vide seizure memo Ex. PW10/A), exhibit 'S1(p)' (Cotton wool swab on a wooden stick of the prosecutrix seized vide seizure memo Ex. PW10/A) and exhibit 'S2' (underwear of accused Mohd. Ishtak seized vide seizure memo Ex. PW6/A). Accused were under an obligation to explain how and under what circumstances, the Human semen came to be present on 'S1(a)(ii)', 'S1(d)', 'S1(p)' and 'S2' as detailed hereinabove. The absence of such an explanation both in the section 313 Cr.P.C. statements of the accused and their omission to lead any evidence in this regard and their complete denial becomes an additional link in the prosecution case.
16. Now let the testimonies of PW1 - Prosecutrix, PW2 - Ram 38 of 84 39 FIR No. 187/11 PS - Kanjhawala Milan, her husband be perused and analyzed.
PW1 the prosecutrix, in her examinationinchief has deposed which is reproduced and reads as under : "In the year, 2011 at the time of incident I was residing in the house of Umed Master near School in village Madanpur Dabas, Delhi. My husband does maisnary (masonry) work and I also work as a labour. It was an incident of first day of a month, month and the year I do not remember. For 2/3 days I was on rest and had not gone to my work and on that day I was going from 35 feeta road in the Madanpur village to take my due wages of the labour from the contractor where I had worked whose name I do not remember at about 12.00 noon or 1.00 pm. In the gali of the 35 feeta road when I was passing where accused Mushtakin (Mustakim) and Mohd. Ishtar were doing maisenary (masonry) work known to me both of them caught hold of me and took me inside the room where they were working. Accused Mushatkin pressed my mouth and accused Ishtar threatened me if I raised any alarm I would be killed. Both accused Mushtakin (Mustakim) and Mohd. Ishtar committed 'galat kam' upon me. Galat kam I mean what is being done by husband to his wife. Firstly Mohd. Ishtar committed the galat kam upon me and thereafter accused Mushtkin (Mustakim) committed galat kam upon me and thereafter both the said accused persons threatened and intimidated me and asked me to go silently to my house if I disclosed this incident to anyone I would be wiped out/killed. Thereafter I went to my house and my husband was not in the house as he had already gone to his work. At about 1.00 or 1.30 pm my husband came to the house and then I narrated the whole incident to him.
39 of 84 40 FIR No. 187/11 PS - Kanjhawala Thereafter I along with my husband had gone to the police station at about 5:00 or 6:00 p.m. My statement was recorded at the police station, the same is Ex. PW1/A which is right thumb impressed by me at point 'A'. Then I was medically examined by the police in SGM hospital in the same night. My clothes which I was wearing at the time of the incident were seized by the doctor. My statement u/s 164 Cr.P.C. was also got recorded by the police.
At this stage a sealed envelope sealed withe the seal of SG is produced and opened from which the proceedings and statement U/s 164 Cr.P.C. are taken out. The statement U/s 164 Cr.P.C. shown to the witness who identifies the same to have been made by her and the same is Ex. PW1/B and right thumb impressed by her at point 'A' & 'B'.
I can identify both the said accused persons if shown to me. At this stage, the wooden partition has been removed. Accused Mushtkin (Mustakim) and Irshad are present in the court (correctly identified).
On the same night I joined investigation and pointed out the place of incident and police prepared site plan at my instance and arrested both the accused Mushtkin (Mustakim) and Mohd. Ishtar who were found sleeping there. The arrest memos of accused Mushtkin (Mustakim) and Ishtar are Ex. PW1/C and PW1/D respectively which have been right thumb impressed by me at points 'A'.
I can identify the clothes which were seized after my medical examination which I was wearing at the time of incident.
At this stage parcel No. 1 sealed with the seal of FSL is produced and opened which contained various articles including clothes. Clothes i.e. a blouse of black colour and a petticoat of red colour are taken out and shown to the witness who identifies the same. The same are Ex. P1 and P2 respectively.
40 of 84 41 FIR No. 187/11 PS - Kanjhawala The site plan which was prepared by the police at my instance, the same is Ex.PW1/E the same is right thumb impressed by me."
From the aforesaid narration of PW1 - prosecutrix, it is clear that in the year, 2011 at the time of incident she was residing in the house of Umed Master near School in village Madanpur Dabas, Delhi. Her husband does masonry work and she also work as a labour. It was an incident of first day of a month, month and the year she does not remember. For 2/3 days she was on rest and had not gone to her work and on that day she was going from 35 feeta road in the Madanpur village to take her due wages of the labour from the contractor where she had worked whose name she does not remember at about 12.00 noon or 1.00 pm. In the gali of the 35 feeta road when she was passing where accused Mustakim and Mohd. Ishtar were doing masonry work known to her both of them caught hold of her and took her inside the room where they were working. Accused Mushatkin pressed her mouth and accused Ishtar threatened her if she raised any alarm she would be killed. Both accused Mustakim and Mohd. Ishtar committed 'galat kam' upon her. Galat kam she mean what is being done by husband to his wife. Firstly Mohd. Ishtar committed the galat kam upon her and thereafter accused 41 of 84 42 FIR No. 187/11 PS - Kanjhawala Mustakim committed galat kam upon her and thereafter both the said accused persons threatened and intimidated her and asked her to go silently to her house if she disclosed this incident to anyone she would be wiped out/killed. Thereafter she went to her house and her husband was not in the house as he had already gone to his work. At about 1:00 or 1:30 p.m. her husband came to the house and then she narrated the whole incident to him. Thereafter, she alongwith her husband had gone to the police station at about 5:00 or 6:00 p.m. Her statement was recorded at the police station, the same is Ex.PW1/A which is right thumb impressed by her at point 'A'. Then she was medically examined by the police in SGM hospital in the same night. Her clothes which she was wearing at the time of the incident were seized by the doctor. Her statement u/s 164 Cr.P.C. was also got recorded by the police. She identified her statement recorded u/s 164 Cr.P.C. Ex.PW1/B and right thumb impressed by her at points 'A' & 'B'. She also correctly identified accused Mustakim and Irshad present in the Court. On the same night she joined investigation and pointed out the place of incident and police prepared site plan at her instance and arrested both the accused Mustakim and Mohd. Ishtar who were found sleeping there. The arrest 42 of 84 43 FIR No. 187/11 PS - Kanjhawala memos of accused Mustakim and Ishtar are Ex. PW1/C and PW1/D respectively which have been right thumb impressed by her at points 'A'. The site plan which was prepared by the police at her instance, the same is Ex. PW1/E the same is right thumb impressed by her.
PW1 - Prosecutrix during her crossexamination has negated the suggestions that she has deposed falsely as no such incident could have taken place in the 12:00 to 1:00 p.m. hours or that she was previously knowing the accused persons or that she was previously knowing both the accused very well or that her dues / wages were pending payable by the accused persons and for taking the same, she had gone to the accused persons or that there was a money dispute between her and the accused persons and for this reason, she has falsely implicated the accused persons or that no incident could have taken place in the house as other labourers must have been working there. Vol. In the said house, only the two accused persons were working at that time or that no incident of rape took place with her or that no offence of rape was committed upon her by the accused persons or that she has falsely implicated both the accused persons in a calculated mode or that it takes 43 of 84 44 FIR No. 187/11 PS - Kanjhawala 10 minutes time only from her house to reach at the Police Station or that she is deposing falsely.
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 perusal and analysis is found to be clear, natural, cogent, convincing, trustworthy and inspiring confidence. The version of this witness on the core spectrum of the crime has remained intact. There is nothing in her statement to suggest that she had any animus against the accused to falsely implicate them in this case.
The testimony of PW1 - Prosecutrix is also found to be corroborated by the medical evidence as well as the biological and serological evidence as discussed hereinbefore.
The testimony of PW1 - Prosecutrix is also found to be in consonance with her statement Ex. PW1/A made to the Police as well as her statement recorded u/s 164 Cr.P.C. Ex. PW1/B. 44 of 84 45 FIR No. 187/11 PS - Kanjhawala The testimony of PW1 Prosecutrix is also found to be corroborated by the testimony of PW2 - Ram Milan, her husband 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 Milan in his examinationinchief has deposed that : "I was working as a mason. On 1.8.2011 as usual I went to my work place and in the lunch time when I returned to my house my wife was weeping. I asked the reason of weeping and she has stated that accused Mushtkin (Mustakim) and Mohd. Ishtar had committed galat kam with her. Galat Kam I mean rape. I was astonished to listen this and set in the house lonely. My children also started weeping. At about 5:00 or 5:45 p.m. I took my wife to the police station. Police had lodged the report on the basis of the statement of my wife. My wife was also got medically examined by the police from Sanjay Gandhi Hospital and we returned to our house at about 11:00 or 11:15 p.m. On the same night some police persons came to our house and I joined the investigation and accompanied the police officials to the place where my wife was raped and both the accused Mushtkin (Mustakim) and Mohd. Ishtar were apprehended as were found sleeping, at the instance of my wife.
I had also accompanied my wife to the court where her statement was recorded by the Magistrate.
I can identify both the accused if shown to me. Accused persons present in court today (correctly identified)."
45 of 84 46 FIR No. 187/11 PS - Kanjhawala From the abovesaid narration of PW2 - Ram Milan, it is clear that he was working as a mason. On 01/08/2011 as usual he went to his work place and in the lunch time when he returned to his house his wife was weeping. He asked the reason of weeping and she has stated that accused Mustakim and Mohd. Ishtar had committed galat kam with her. Galat Kam he mean rape. He was astonished to listen this and set in the house lonely. His children also started weeping. At about 5:00 or 5:45 p.m. he took his wife to the police station. Police had lodged the report on the basis of the statement of his wife. His wife was also got medically examined by the police from Sanjay Gandhi Hospital and they returned to their house at about 11:00 or 11:15 p.m. On the same night some police persons came to their house and he joined the investigation and accompanied the police officials to the place where his wife was raped and both the accused Mustakim and Mohd. Ishtar were apprehended as were found sleeping, at the instance of his wife. He had also accompanied his wife to the Court where her statement was recorded by the Magistrate. He also correctly identified both the accused persons present in Court.
During his crossexamination PW2 - Ram Milan has 46 of 84 47 FIR No. 187/11 PS - Kanjhawala negated the suggestions that both Ishtak and Mustakim are the masons (raj mistri) and it is they, who had got the work to his wife at the site, of which she had gone to collect her wages or that accused Ishtak and Mustakim have been falsely implicated in this case as there was some altercation (noke jhoke) on the issue of giving the wages or that no galat kaam had ever been committed by the accused persons with his wife or that, of the happening of the altercation (noke jhoke) after three hours thereof, in a planned manner, both the accused have been falsely implicated in the case or that he is deposing falsely.
There is nothing in the crossexamination of PW2 - Ram Milan so as to impeach his creditworthiness. He has withstood the rigors of crossexamination without being shaken. On careful perusal and analysis and by applying the discerning scrutiny standard [Ref. Raju @ Balachandran & Ors. Vs. State of Tamil Nadu 2012 XII AD (S.C.)1] his testimony is found to be natural, clear, reliable, inspiring confidence and having a ring of truth. There is nothing in his statement to suggest that he had any animus against the accused to falsely implicate them in the case.
47 of 84 48 FIR No. 187/11 PS - Kanjhawala
17. While analysing the testimonies of PW1 - prosecutrix and PW2 - Ram Milan her husband as discussed hereinabove inspite of incisive crossexamination nothing has come out in their statements which may throw even a slightest doubt on the prosecution version of the incident. Though, the suggestions by the defence to PW1 - prosecutrix that she has deposed falsely as no such incident could have taken place in the 12 to 1 p.m. hours or that she was previously knowing the accused persons or that she was previously knowing both the accused very well or that her dues / wages were pending payable by the accused persons and for taking the same, she had gone to the accused persons or that there was a money dispute between her and the accused persons and for this reason, she has falsely implicated the accused persons or that no incident could have taken place in the house as other labourers must have been working there Vol. In the said house only the two accused persons were working at that time or that no incident of rape took place with her or that no offence of rape was committed upon her by the accused persons or that she has falsely implicated both the accused persons in a calculated mode or that it takes 10 minutes time only from her house to 48 of 84 49 FIR No. 187/11 PS - Kanjhawala reach at the Police Station or that she is deposing falsely and the suggestions to PW2 - Ram Milan, husband of the prosecutrix that both Ishtak and Mustakim are the masons (raj mistri) and it is they, who had got the work to his wife at the site, of which she had gone to collect her wages or that accused Ishtak and Mustakim have been falsely implicated in this case as there was some altercation (noke jhoke) on the issue of giving the wages or that no galat kaam had ever been committed by the accused persons with his wife or that, of the happening of the altercation (noke jhoke) after three hours thereof, in a planned manner, both the accused have been falsely implicated in the case or that he is deposing falsely, were put, which were negated by the said PWs but the same have not at all being made probable much established by any cogent evidence. Further there is not an iota of evidence or even a suggestion that the accused have been falsely implicated because of animosity.
However, a futile attempt has been made by both the accused in order to save their skin from the clutches of law by way of examination of DW1 - Manoj Shah, DW2 - Mohd. Afzal and DW3 - Abdul Rashid.
49 of 84 50 FIR No. 187/11 PS - Kanjhawala DW1 - Manoj Shah in his examinationinchief has deposed that on 01/08/2011, he was present at his house and in the house opposite to his house, Mustakim and other labourer were working. At about 3:00 p.m. two Police officials came there and told Mustakim as to whatever money he has taken, let he give it back and the matter will be settled here only and thereafter Police took away Mustakim from there. The transaction of paying and giving of money between labourer & Mistry always go on (Lena Dena Laga Rehta Hai).
During his crossexamination DW1 - Manoj Shah has deposed that : "I have not received any summon. I have come in the Court on the asking of brother of accused Mohd. Mustakim. It is wrong to suggest that Police had not taken away Mohd. Mustakim on 01/08/2011 at about 3:00 p.m. It is wrong to suggest that accused Mohd. Mustakim was arrested by the Police later on in the night. It is wrong to suggest that I am deposing falsely in order to save the accused at the instance of brother of Mohd. Mustakim."
On careful perusal and analysis of the testimony of DW1 - Manoj Shah, it clearly indicates that he had not received any summons and has come to the Court on the asking of brother of accused Mohd. Mustakim. He has not deposed any material facts regarding the incident 50 of 84 51 FIR No. 187/11 PS - Kanjhawala and has deposed only with regard to accused Mustakim. Rather, his testimony corroborates the case of the prosecution regarding the presence of accused Mohd. Mustakim on the date and at the place of incident.
DW2 - Mohd. Afzal in his examinationinchief has deposed that he knows prosecutrix (name withheld) and she had worked with him as he was working as a Maison (Mason). He does not remember the date, month and year. One day, prosecutrix (name withheld) came to him for work at about 9:00 a.m. and she worked till 11:00 a.m. and thereafter she told that she wanted to go for taking her wages/money. After about 10 minutes she came back and she worked till lunch. But she did not attend the work after the lunch. He (DW2) does not know about prosecutrix (name withheld) as to what type of lady she was. He does not know why she did not return after the lunch hours.
During his crossexamination DW2 - Mohd. Afzal has deposed that : "Accused Mohd. Mustakin (Mustakim) is of my village so I know him from childhood. I know accused Mohd. Istar (Ishtar) as he is resident of my locality. It is wrong to suggest that I deposed falsely in 51 of 84 52 FIR No. 187/11 PS - Kanjhawala my examinationinchief in order to create a false defence for accused Mohd. Ishtar and Mohd. Mustakin (Mustakim)."
On careful perusal and analysis of the testimony of DW2 - Mohd. Afzal, it clearly indicates that he is a known to both the accused Mohd. Mustakim and Mohd. Ishtar and his testimony is found to be totally bereft of material particulars and does not come to the rescue of the accused.
DW3 - Abdul Rashid in his examinationinchief has deposed that on 01/08/2011, construction work was going on at his house at C - 634, Mir Vihar, 8'' (foot) road. He was also sitting there. One lady came there whose name he does not know and talks were going on between that lady and Mohd. Mustakim & Mohd. Ishtar regarding the money. That lady was saying that if they will not pay the money that she will report the matter to the Police. This was happened around 11:15 a.m. He (DW3) remained there till 1:30 p.m. and thereafter he went for Namaz, when he came back (he came to) know that Police had taken away Mohd. Mustakim & Mohd. Ishtar. He went to the Police Station but Police did not allow him to talk with Mohd. Ishtar and Mohd. Mustakim and he was asked to go from the Police Station.
52 of 84 53 FIR No. 187/11 PS - Kanjhawala During his crossexamination DW3 - Abdul Rashid has deposed that : "I have not brought any documentary proof that abovesaid house belongs to me. I do not know from whom I purchased the abovesaid house. I purchased this house in the year, 2010. I purchased the plot on which on abovesaid house was constructed for Rs. 2 lacs. I was running a factory of bags in the year, 2011. the factory was situated at Nabi Karim. I used to go in the factory in the morning at about 9:00 a.m. and used to come back from factory to house at about 10:00 p.m. I was getting constructing the house on labour basis. I have not brought any record showing that I used to pay wages to the labours working there. At that time, I was residing at C550, Meer Vihar which is situated in the next gali. Three labours were also working at my house but I do not know their names. I know accused Mohd. Mustkin (Mustakim) and Mohd. Ishtar since, 2005 when I started residing in the colony. Mohd. Mustkin (Mustakim) and Mohd. Ishtar are residing just near to my house. I am having good relations with accused Mohd. Mustkin (Mustakim) and Mohd. Ishtar. Police had apprehended the accused Mohd. Mustkin (Mustakim) and Mohd. Ishtar at about 3:45 p.m. again said at about 2:45 p.m. Accused were not apprehended in my presence. It is wrong to suggest that I am deposing falsely that Mohd. Mustkin (Mustakim) and Mohd. Ishtar were apprehended at about 2:45 p.m. It is wrong to suggest that both the accused were arrested at about 1:15 a.m. on 02/08/2011. Mustafa is brother of Mohd. Mustkin (Mustakim) and he is my friend. Guddu is brother of Ishtar. It is wrong to suggest that Police had given information regarding the arrest of Mohd. Mustkin (Mustakim) and Mohd. Ishtar to Mustafa and Guddu. It is wrong to suggest that I am deposing falsely in this regard. It is wrong 53 of 84 54 FIR No. 187/11 PS - Kanjhawala to suggest that I was not present on (in) my house at C - 634, Meer Vihar, 18 feet Road, Delhi and I have concocted a false story to save accused Mohd. Ishtar and Mohd. Mustkin (Mustakim) as they are my neighbours. I came to know that accused have been involved in a rape case at around 5:00 p.m. when I talked to beat officer and he told me that it is a rape case and it has not been concerned with my house. I have not given anything in writing in PS or made a complaint to senior Police officer or any Court that both accused have been falsely implicated in this case. It is wrong to suggest that I am deposing falsely as both accused are my neighbours."
On careful perusal and analysis of the testimony of DW3 - Abdul Rashid, it is found that his crossexamination has nullified as to what he deposed in his examinationinchief. It is quite strange that as per his testimony, he remained present at the place of incident for more than 1½ hours but he could not know the name of the lady who allegedly visited the place and was transacting with accused Mohd. Mustakim and Mohd. Ishtar. As is indicated from his crossexamination, that he came to know that both the accused have been implicated in a rape case at around 5:00 p.m. and he being in known of both the accused then why he did not make any complaint in writing to the Senior Police Officers or any Court against their alleged false implication.
Further the said facts deposed/factual theories propounded 54 of 84 55 FIR No. 187/11 PS - Kanjhawala by the said DWs were not put/suggested to PW1 - prosecutrix during her incisive and lengthy crossexamination. Nor even a single word regarding the said facts deposed/factual theories propounded by the said DWs, was uttered by the accused during their statements u/s 313 Cr.P.C. In the circumstances, the facts deposed/factual theories propounded by the said DWs are merely an afterthought.
In view of above and in the circumstances, it clearly indicates that DW1 - Manoj Shah, DW2 - Mohd. Afzal and DW3 - Abdul Rashid are the procured witnesses and their testimonies do not inspire confidence.
18. It is well settled that rape, is crime and not a medical condition. Rape is a legal term and not a diagnosis to be made by the medical officer treating the victim.
It is to be noticed that the opinion expressed by Modi in Medical jurisprudence and Toxicology (Twenty First Edition) at page 369 which reads as : 55 of 84 56 FIR No. 187/11 PS - Kanjhawala "Thus to constitute the offence of rape it is not necessary that there should be complete penetration of penis with emission of semen and rupture of hymen. Partial penetration of the penis within the labia majora or the vulva or pudenda with or without emission of semen or even an attempt at penetration is quite possible to commit legally the offence of rape without producing any injury to the genitals or leaving any seminal stains. In such a case the medical officer should mention the negative facts in his report, but should not give his opinion that no rape had been committed. Rape, is crime and not a medical condition. Rape is a legal term and not a diagnosis to be made by the medical officer treating the victim. The only statement that can be made by the medical officer is that there is evidence of recent sexual activity. Whether the rape has occurred or not is a legal conclusion, not a medical one."
In Parikh's Textbook of Medical jurisprudence and Toxicology, the following passage is found : "Sexual intercourse : In law, this term is held to mean the slightest degree of penetration of the vulva by the penis with or without emission of semen. It is therefore quite possible to commit legally the offence of rape without producing any injury to the genitals or leaving any seminal stains."
In Encyclopedia of Crime and Justice (Vol. 4) at page 56 of 84 57 FIR No. 187/11 PS - Kanjhawala 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 Ex. PX and PX1, gynaecological examination at portion 'X' to 'X' Ex. PW7/A on the MLC Ex. PW3/A of the prosecutrix, medical examination from portion 'A' to 'A1' on the MLC Ex. PW3/A of the prosecutrix together with the MLC of accused Mohd. Ishtar Ex. PW3/B and that of MLC of accused Mohd. Mustkeen Ex. PW3/C, as discussed hereinbefore, the act of sexual intercourse activity by complete penetration of penis with emission of semen or by partial penetration of the penis with emission, 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 both the accused Mohd. Ishtar and Mohd. Mustkeen with PW1 - Prosecutrix without her consent.
57 of 84 58 FIR No. 187/11 PS - Kanjhawala
19. Learned Counsel for the accused submitted that PW1 - prosecutrix (name withheld) in her statement recorded u/s 161 Cr.P.C. stated that she was known to both the accused persons and she had worked with the accused persons. Similar averments in the FIR to the effect that the complainant was in acquaintance with the accused persons whereas in the crossexamination conducted on 12/12/2012 she has totally denied this very fact. The relevant portion of her cross examination is reproduced here as under : "It is wrong to suggest that I was previously knowing the accused persons..... I did not know the name of accused persons prior to date of incident."
Learned Counsel for accused further submitted that another important fact which casts a shadow of doubt about the veracity of testimony of PW1 and PW2 and make strength in the defence of accused persons is that PW1 - prosecutrix has admitted in her statement recorded u/s 161 Cr.P.C. that "she had worked with these persons." The relevant portion of her statement is being reproduced here as under : "Main in dono ko Mohd. Mustkim or Ishthar ko kuch mahine se janti thi. In sardiyon main maine 1012 din in dono ke sath 58 of 84 59 FIR No. 187/11 PS - Kanjhawala thekedar ke liyen kam kiya tha". Learned Counsel for accused further submitted that PW1 - prosecutrix has stated in her examinationinchief that she was in acquaintance of both the accused persons and she had worked with them whereas PW2 - Sh. Ram Milan has stated in his cross examination that "my wife was not working with Mohd. Ishtar and Mustkim and no wages lying balances of my wife with accused persons". Vol. She had gone to collect her wages from the other side where she had worked earlier and when she was passing through a gali, she was caught by Ishtaq and Mushtakin."
I have carefully perused and analysed the evidence on record.
If in the estimation of the Learned Counsel for the accused, the testimony of PW1 - prosecutrix was not as per the statement u/s 161 Cr.P.C. or as per the statement made by her to the Police Ex. PW1/A or as per the statement u/s 164 Cr.P.C. Ex. PW1/B, then he should have sought an explanation from the prosecutrix during her crossexamination and should have confronted her with her statement u/s 161 Cr.P.C. or the statement made to Police Ex. PW1/A or the statement u/s 164 Cr.P.C. Ex.
59 of 84 60 FIR No. 187/11 PS - Kanjhawala PW1/B but he failed to do so. For such failure, accused are to blame themselves and none else. Moreover, the so called variations or improvements on the aspect of knowing the accused previously or their names etc. are the 'clarifications' or 'elaborations' of facts in response to the questions put to her, which she was not supposed to state in the statements u/s 161 Cr.P.C. or the statement made to the Police Ex. PW1/A or the statement u/s 164 Cr.P.C. Ex. PW1/B. The core facts about committal of the crime by the accused upon the prosecutrix remained intact.
The accused appeared to have propounded the theory that, "PW1 - prosecutrix had gone to the accused persons for taking her pending dues/wages payable by accused".
Although the testimony of PW1 - prosecutrix has been discussed and analysed hereinbefore. At the cost of repetition, the testimony of PW1 - prosecutrix has been found to be clear, natural, cogent, convincing and inspiring confidence.
It is pertinent to reproduce the relevant part of examination inchief of PW1 - prosecutrix which reads as under : 60 of 84 61 FIR No. 187/11 PS - Kanjhawala "In the gali of the 35 feeta road when I was passing where accused Mushtakin (Mustakim) and Mohd. Ishtar were doing maisenary work known to me both of them caught hold of me and took me inside the room where they were working. Accused Mushatkin pressed my mouth and accused Ishtar threatened me if I raised any alarm I would be killed. Both accused Mushtakin (Mustakim) and Mohd. Ishtar committed 'galat kam' upon me. Galat kam I mean what is being done by husband to his wife. Firstly Mohd. Ishtar committed the galat kam upon me and thereafter accused Mushtkin (Mustakim) committed galat kam upon me and thereafter both the said accused persons threatened and intimidated me and asked me to go silently to my house if I disclosed this incident to anyone I would be wiped out/killed."
During her crossexamination, PW1 - prosecutrix has deposed that : "It is wrong to suggest that I was previously knowing the accused persons. It is wrong to suggest that I was previously knowing both the accused very well or that my dues/wages were pending payable by the accused persons and for taking the same, I had gone to the accused persons. Vol. The person with whom my dues/wages were payable was a different person and not the accused persons."
"I did not know the name of both the accused persons prior to the date of incident. Vol. After the date of incident I came to know the name of both the accused persons as Mustkin and Ishtiyar."
In view of the abovesaid part of the testimony of PW1 -
61 of 84 62 FIR No. 187/11 PS - Kanjhawala prosecutrix, the theory that, "PW1 - prosecutrix had gone to the accused persons for taking her pending dues/wages payable by accused" so propounded by the accused, falls flat to the ground. Moreover, the said theory, so propounded, has not at all being made probable much established by any cogent evidence.
Further, the said theory, so propounded by the accused, has also been knocked out by PW2 - Ram Milan, husband of PW1 - prosecutrix who in his crossexamination has also specifically deposed that his wife was not working with Ishtaq and Mushtakin and no wages were lying balance of his wife with Ishtaq and Musthakin and she had gone to collect her wages from the other side where she had worked earlier.
At the cost of repetition, the relevant part of the cross examination of PW2 - Ram Milan is reproduced and reads as under : "My wife was not working with Ishtaq and Mushtakin. No wages were lying balances of my wife with Ishtaq and Musthakin. Vol. She had gone to collect her wages from the other side where she had worked earlier and when she was passing through a gali, she was caught by Ishtaq and Mushtakin."
In case A. Shankar Vs. State of Karnataka, 2011 VII AD 62 of 84 63 FIR No. 187/11 PS - Kanjhawala (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 sight also cannot be lost of the fact that the Indian women has tendency to conceal offence of sexual assault because it involves her prestige as well as prestige of her family. Only in few cases, the victim girl or the family members has courage to go before the Police Station and lodge a case.
Normally a woman would not falsely implicate for the offence of rape at the cost of her character. In Indian society, it is very unusual that a lady with a view to implicate a person would go to the extent of stating that she was raped. [Ref. Madan Lal Vs. State of MP 63 of 84 64 FIR No. 187/11 PS - Kanjhawala (1997) 2 Crimes 210 (MP)].
The Hon'ble Supreme Court in case Karnel Singh Vs. State of M.P. (1995) 5 SCC 518, has held : "7.......The submission overlooks the fact that in India women are slow and hesitant to complain of such assaults and if the prosecutrix happens to be a married person she will not do anything without informing her husband. Merely because the complaint was lodged less then promptly does not raise the inference that the complaint was false. The reluctance to go to the police is because of society's attitude towards such women; it casts doubt and shame upon her rather than comfort and sympathise with her. Therefore, delay in lodging complaints in such cases does not necessarily indicate that her version is false (emphasis added)."
The Hon'ble Supreme Court in Para 21 in case Rajinder Vs. 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 64 of 84 65 FIR No. 187/11 PS - Kanjhawala 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 the prosecutrix. In normal course a victim of sexual assault does not like to disclose such offence even before her family members much less before public or before the police. The Indian women has tendency to conceal such offence because it involves her prestige as well as prestige of her family. Only in few cases, the victim girl or the family members has courage to go before the police station and lodge a case......"
The Hon'ble Supreme Court in Para 20 in case Satyapal Vs. State of Haryana AIR 2009 SC 2190 has interalia held : "20. This Court can take judicial notice of the fact that ordinarily the family of the victim would not intend to get a stigma attached to the victim. Delay in lodging the First Information Report in a case of this nature is a normal phenomenon......."
65 of 84 66 FIR No. 187/11 PS - Kanjhawala 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.
20. Learned Counsel for accused submitted that there is no averment either in the FIR, in the statement recorded u/s 161 Cr.P.C. or during the course of examinationinchief and crossexamination of PW1
- prosecutrix that she raised any alarm/voice or made any attempt to make a noise against the so called alleged act of the accused persons which further disprove the testimony of PW1 and PW2. Learned 66 of 84 67 FIR No. 187/11 PS - Kanjhawala Counsel for accused further submitted that it is also really shocking that the complainant did not make any resistance or hue and cry when she was allegedly to be taken by the accused to the room or when the alleged rape was committed with her. Learned Counsel for accused further submitted that the place as alleged by the complainant is a very crowded place and in the adjoining house, a number of people are residing as also admitted by PW1 - prosecutrix and it is really shocking that nobody came or complainant attempted to make a noise so that the local person can gathered at the spot. Learned Counsel for accused further submitted that in the entire prosecution evidence, the prosecution has not examined even a single independent or impartial witness to prove the alleged offence against the accused persons. Though as per the averment of the complainant, the place where the offence was committed is very crowded and a number of persons are residing. Learned Counsel for accused further submitted that otherwise also it is not believable by any stretch of imagination that the alleged rape could be committed by the accused persons in a very crowded place, in the board day light, time of alleged 12:00 - 1:00 p.m. and that to the alleged room. Learned Counsel for accused further submitted that in the entire evidence, it is also not even 67 of 84 68 FIR No. 187/11 PS - Kanjhawala mentioned as to how many labourers were working at the spot where the alleged offence was committed.
I have carefully perused and analysed the evidence on record.
PW1 - prosecutrix in her examinationinchief has specifically deposed that she could not raise any alarm as her mouth was pressed by accused Mustakim and threatened by accused Ishtar if she raised the alarm, she would be killed.
At the cost of repetition, the relevant part of examinationin chief of PW1 - prosecutrix reads as under : "In the gali of the 35 feeta road when I was passing where accused Mushtakin (Mustakim) and Mohd. Ishtar were doing maisenary work known to me both of them caught hold of me and took me inside the room where they were working. Accused Mushatkin pressed my mouth and accused Ishtar threatened me if I raised any alarm I would be killed. Both accused Mushtakin (Mustakim) and Mohd. Ishtar committed 'galat kam' upon me. Galat kam I mean what is being done by husband to his wife. Firstly Mohd. Ishtar committed the galat kam upon me and thereafter accused Mushtkin (Mustakim) committed galat kam upon me and thereafter both the said accused persons threatened and intimidated me and asked me to go silently to my house if I disclosed this incident to anyone I would be wiped out/killed."
68 of 84 69 FIR No. 187/11 PS - Kanjhawala During her crossexamination, PW1 - prosecutrix has specifically deposed that at the time of incident only two accused persons were working. The relevant part of crossexamination of PW1 - prosecutrix reads as under : "It is wrong to suggest that no incident could have taken place in the house as other labourers must have been working there. Vol. In the said house, only the two accused persons were working at that time."
From above, it is clearly indicated that at the time of incident at the place of incident/house only two accused were present, it thereby rules out the presence of any other person who could have witnessed the events. In the circumstances, prosecution cannot be expected to examine those who have not witnessed the events though 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 away. When any 69 of 84 70 FIR No. 187/11 PS - Kanjhawala 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."
In the circumstances, there is no substance in the plea so raised by the Learned Counsel for the accused.
21. Learned Counsel for accused submitted that in the FIR, it is mentioned that the accused persons had taken the complainant by alluring her whereas in the statement recorded she has stated that she was taken under threat.
I have carefully perused and analysed the evidence on 70 of 84 71 FIR No. 187/11 PS - Kanjhawala record.
The testimony of PW1 - prosecutrix has been reproduced, discussed and analysed hereinbefore. Her testimony is found to be, clear, cogent, convincing, reliable and inspiring confidence. If in the estimation of Learned Counsel for the accused that the said part of the testimony of PW1 - prosecutrix was not as per the statement made by her to the Police, Ex. PW1/A on the basis of which FIR was recorded then he should have sought an explanation from the prosecutrix during her crossexamination and should have confronted her with her statement made to Police Ex. PW1/A, on the basis of which FIR was recorded but he failed to do so. For such failure accused are to blame themselves and none else.
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 71 of 84 72 FIR No. 187/11 PS - Kanjhawala 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.
In case Leela Ram Vs. State of Haryana, (1999) 9 SCC 525, the Hon'ble Supreme Court of India in case has observed that, there are bound to be some discrepancies in the narration of certain witnesses when they speak out details. The corroboration of evidence with mathematical niceties cannot be expected in criminal cases. Minor embellishments, there may be, but variations by reasons therefore should not render the evidence of eye witnesses unbelievable.
It is a settled principle of law that every improvement or variation cannot be treated as an attempt to falsely implicate the accused by the witness. The approach of the Court has to be reasonable and practicable. (Reference Ashok Kumar Vs. State of Haryana [(2010) 12 SCC 350] and Shivlal and Another Vs. State of Chhattisgarh [(2011) 9 SCC 561]).
The Hon'ble Supreme Court in Para 21 of the case titled Kuria & Anr. Vs. State of Rajasthan 2012 XI AD (S.C.) 376 has held 72 of 84 73 FIR No. 187/11 PS - Kanjhawala 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.
73 of 84 74 FIR No. 187/11 PS - Kanjhawala Reference in this regard can be made to the judgments of this Court in Kathi Bharat Vajsur and Another Vs. State of Gujrat [(2010) 5 SCC 724], Narayan Chetanram Chaudhary and Another Vs. State of Maharashtra [(2000) 8 SCC 457], D. P. Chadha Vs. Triyugi Narain Mishra and Others [(2001) 2 SCC 205] and Sukhchain Singh Vs. State of Haryana and others [(2002) 5 SCC 100].
In the circumstances, there is no substance in the plea so raised by the Learned Counsel for the accused.
22. Learned Counsel for accused submitted that the medical report also does not prove the alleged offence.
I have carefully perused and analysed the evidence on record.
Although, the Learned Counsel for the accused has not clarified as to how & why the medical report of the prosecutrix does not prove the alleged offence. Yet the plea appears to relate to the fact that there was no external injury visible on the body of the prosecutrix vide MLC Ex. PW3/A. At the cost of repetition, PW1 - prosecutrix during her 74 of 84 75 FIR No. 187/11 PS - Kanjhawala examinationinchief has specifically deposed that : ".....Accused Mushatkin pressed my mouth and accused Ishtar threatened me if I raised any alarm I would be killed. Both accused Mushtakin (Mustakim) and Mohd. Ishtar committed 'galat kam' upon me. Galat kam I mean what is being done by husband to his wife. Firstly Mohd. Ishtar committed the galat kam upon me and thereafter accused Mushtkin (Mustakim) committed galat kam upon me and thereafter both the said accused persons threatened and intimidated me and asked me to go silently to my house if I disclosed this incident to anyone I would be wiped out/killed."
The evidence of PW3 - Dr. Brijesh Singh and PW7 - Dr. Aditi has been reproduced, discussed and analysed hereinabove.
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).
75 of 84 76 FIR No. 187/11 PS - Kanjhawala 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', 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.
23. Learned Counsel for accused submitted that in the entire evidence neither the number of room nor the place of occurrence of the 76 of 84 77 FIR No. 187/11 PS - Kanjhawala incident has been mentioned.
I have carefully perused and analysed the evidence on record.
PW1 - prosecutrix in her examinationinchief has specifically deposed regarding the place of incident and has also proved the site plan Ex. PW1/E. The relevant part of examinationinchief of PW1 - prosecutrix reads as under : "In the gali of the 35 feeta road when I was passing where accused Mushtakin (Mustakim) and Mohd. Ishtar were doing maisenary (masonry) work known to me both of them caught hold of me and took me inside the room where they were working."
"The site plan which was prepared by the police at my instance, the same is Ex. PW1/E the same is right thumb impressed by me."
Further, during her crossexamination, PW1 - prosecutrix has specifically deposed that : "It is correct that the house/place of incident is situated on the 35 ft road in the Madanpur village. Vol. Through which road I was passing."
Moreover, PW8 - Mashur Ansari in his examinationin chief has deposed that he is the owner of house no. C129, Mir Vihar, 77 of 84 78 FIR No. 187/11 PS - Kanjhawala Madan Pur Dabas, Delhi where the alleged incident (had) taken place. At that time the house C129, Mir Vihar, Madan Pur Dabas, Delhi was under construction and the construction was going on under the supervision of Contractor (Thekedar) Manjoor, he is now not available.
In the circumstances, there is no substance in the plea so raised by the Learned Counsel for the accused.
24. Learned Counsel for accused submitted that PW8 - Mashur Ansari is the owner of the house where the alleged offence has been committed and during the course of his examinationinchief conducted on 01/11/2012, he has not uttered even a single word against the accused persons or about the commission of any alleged offence.
I have carefully perused and analysed the evidence on record.
PW8 - Mashur Ansari S/o Sh. Gudar Milan, Age - 27 years, R/o House No. C - 129, Mir Vihar, Madan Pur Dabas, Delhi in his examinationinchief has deposed that : "I am the owner of above house (house no. C129, Mir Vihar, Madan Pur Dabas, Delhi) where the alleged incident (had) taken 78 of 84 79 FIR No. 187/11 PS - Kanjhawala place. At that time the house C129, Mir Vihar, Madan Pur Dabas, Delhi was under construction and the construction was going on under the supervision of Contractor (Thekedar) Manjoor. He is now not available."
Despite grant of opportunity PW8 - Mashur Ansari was not crossexamined on behalf of accused.
It is not made clear by the Learned Counsel for the accused as to what benefit he intends to reap from the testimony of PW8 - Mashur Ansari. In his testimony, PW8 - Mashur Ansari except deposing to the effect that he is the owner of the H. No. C129, Mir Vihar, Madan Pur Dabas, Delhi where the alleged incident had taken place and at that time the house No. C129, Mir Vihar, Madan Pur Dabas, Delhi was under construction and the construction was going on under the supervision of contractor (thekedar) contractor Manjoor, who is now not available, PW8 - Mashur Ansari has not deposed and testified any fact that he was present at his said house at the time of alleged incident.
When PW8 - Mashur Ansari has not testified any fact regarding the incident, then how it could be expected of him to utter a single word regarding the incident and of the particeps criminis.
In the circumstances, there is no substance in the plea so 79 of 84 80 FIR No. 187/11 PS - Kanjhawala raised by the Learned Counsel for the accused.
25. Learned Counsel for accused submitted that, there are various contradictions in the testimony of PW3 - Dr. Brijesh Singh, CMO Sanjay Gandhi Memorial Hospital who has stated in the cross examination that his duty hours were 2:00 p.m. to 8:00 p.m. on 01/08/2011 whereas in examinationinchief he has stated that he examined the accused persons at about 1:50 a.m. and 2:00 a.m. I have carefully perused and analysed the evidence on record.
It appears that Learned Counsel for the accused has either misread or not read the testimony of PW3 - Dr. Brijesh Singh.
It is pertinent to reproduce the examinationinchief of PW3
- Dr. Brijesh Singh which reads as under : "On 01/08/2011 at about 7:45 p.m. I examined prosecutrix (name withheld) S/o (W/o) Ram Milan brought by women (Woman) Constable Anita as prosecutrix (name withheld) was victim of sexual assault. I examined the patient and there was no external injury visible. After preliminary examination the patient was referred to SR Gynae for further examination and opinion. I prepared the MLC Ex.
80 of 84 81 FIR No. 187/11 PS - Kanjhawala PW3/A and my examination is from 'A' to 'A1' on MLC Ex. PW3/A, signed by me at point B. On 02/08/2011 at about 1:50 a.m., Ishtyak S/o Mohd. Taslil brought by Constable Harinder for his medical examination as the accused is involved in sexual assault. On external examination his vitals were found to be stable. On local examination, there was no external injury seen. I examined the sexual organ of the patient and after examination, I am of the opinion that there was nothing to suggest that the person cannot perform the act of sexual intercourse. The MLC is Ex. PW3/B signed by me at point 'A'. I also sealed the undergarments and blood sample of the persons Ishtyak and handed over to the IO.
On 02/08/2011 at about 2:00 a.m. one person named Mohd. Mushtakim S/o Abbas brought by Constable Dheeraj for his medical examination as the accused is involved in sexual assault. On examination his vitals were found to be stable. On local examination, there was no external injury seen. I examined the sexual organ of the patient and after examination, I am of the opinion that there was nothing to suggest that the person cannot perform the act of sexual intercourse. The MLC is Ex. PW3/C signed by me at point 'A'. I also sealed the undergarments and blood sample of the person of Mukstkim (Mustkim) and handed over to the IO."
During his crossexamination PW3 - Dr. Brijesh Singh has deposed that : "Q. What were your duty timings on 01/08/2011? Ans. On seeing the MLC Ex. PW3/A, my duty hours were from 2:00 p.m. to 8:00 p.m. Nothing was asked as to what is being contained at point 'C' 81 of 84 82 FIR No. 187/11 PS - Kanjhawala as when the patient is produced for examination this requisition at point 'C' is already there."
From the above, it is clearly indicated that PW3 - Dr. Brijesh Singh on 01/08/2011 at about 7:45 p.m. he conducted the preliminary medical examination of patient/prosecutrix from 'A' to 'A1' vide MLC No. 10737 Ex. PW3/A and on 02/08/2011, in the night at about 1:50 a.m. he conducted the medical examination of accused Ishtyak vide MLC No. 18934 Ex. PW3/B and on 02/08/2011, in the night at about 2:00 a.m. he also conducted the medical examination of accused Mohd. Mustakim vide MLC No. 18935 Ex. PW3/C. In the circumstances, there is no contradiction in the testimony of PW3 - Dr. Brijesh Singh, as has been attempted to be portrayed by the Learned Counsel for the accused. Nor any evidence to the contrary has been produced or led on the record by the accused.
In the circumstances, there is no substance in the plea so raised by the Learned Counsel for the accused.
26. In view of above and in the circumstances, prosecution has thus categorically proved beyond shadows of all reasonable doubts that 82 of 84 83 FIR No. 187/11 PS - Kanjhawala on 01/08/2011 at about 11:00 a.m. to 12:00 noon accused Mohd. Ishtar @ Ishtak and Mohd. Mustakin @ Mustakim in furtherance of their common intention had stopped PW1 prosecutrix near Maszid Mir Vihar, Madan Pur Dabas while she was going on 35 feeta road and they both in furtherance of their common intention had taken her in a room near the above place and each of them, one after another gang raped her forcefully without her consent and against her will and also criminally intimidated PW1 prosecutrix to kill her if she disclosed the incident of rape to any person.
I accordingly hold accused Mohd. Ishtar @ Ishtak and Mohd. Mustkin @ Mustakim guilty for the offences punishable u/s 376(2)(g) and 506 (II) IPC and convict them thereunder.
27. In view of above discussion, I am of the considered opinion that as far as the involvement of the accused Mohd. Ishtar @ Ishtak and Mohd. Mustakin @ Mustakim in the commission of the offences u/s 376(2)(g) and 506 (II) 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 83 of 84 84 FIR No. 187/11 PS - Kanjhawala accused Mohd. Ishtar @ Ishtak and Mohd. Mustakin @ Mustakim beyond shadows of all reasonable doubts and there is no room for hypothesis, consistent with that of innocence of accused. I, therefore, hold accused Mohd. Ishtar @ Ishtak and Mohd. Mustakin @ Mustakim guilty for the offences punishable u/s 376(2)(g) and 506 (II) IPC and convict them thereunder.
Announced in the open Court (MAHESH CHANDER GUPTA) on 13th Day of November, 2013 Additional Sessions Judge Special Fast Track Court (N/W District), Rohini, Delhi 84 of 84