Delhi District Court
State vs . Deepak @ Deep Chand on 6 February, 2016
1
FIR No. 50/10
PS - Jahangir Puri
IN THE COURT OF SH. MAHESH CHANDER GUPTA :
ADDITIONAL SESSIONS JUDGE : SPECIAL FAST TRACK
COURT : NORTH DISTRICT : ROHINI : DELHI
SESSIONS CASE NO. : 27/13
Unique ID No. : 02404R0119972010
State Vs. Deepak @ Deep Chand
S/o Sh. Deena Nath
R/o Jhuggi No. 555,
H2 Block, Jahangir Puri,
Delhi.
FIR No. : 50/10
Police Station : Jahangir Puri
Under Sections : 323/363/342/376(2)(f)/506 IPC
Date of committal to session Court : 02/07/2010
Date on which judgment reserved : 30.01.2016
Date on which judgment announced : 04.02.2016
J U D G M E N T
1 of 202 2 FIR No. 50/10 PS - Jahangir Puri
1. Briefly stated the case of the prosecution as unfolded by the report under section 173 Cr.P.C is as under : That on 07/02/2010, SI Sushila Rana on receipt of information regarding rape call vide DD No. 25A, reached at the PS - Jahangir Puri where ASI Umed Singh with Constable Jasvir met who had firstly attended the said call. In the room of the Duty Officer victim (name withheld being a case u/s 376 IPC) and her grandmother Smt. Krishna met and from them inquiries were made by SI Sushila Rana. Thereafter, SI Sushila Rana accompanied by ASI Umed Singh, Constable Jasvir, HC Asha took the victim with her grandmother Smt. Krishna to the BJRM hospital, Jahangir Puri for getting conduct the medical examination of the victim, where medical examination of the victim was got conducted vide MLC No. 5733, E. No. 9632. Thereafter, statement of grandmother of the victim, Smt. Krishna W/o Sh. Chatar Singh R/o Jhuggi No. 555, H2 Block, Jahangir Puri age 50 years permanent address Chhota Khanpur, Thanudra, Tehsil Jhinjhana, Muzaffarnagar, U.P. was recorded which is to the effect that, she lives with her family at the above address and is having three sons and one daughter and all her four children are married. Her elder son Roop Singh is having five 2 of 202 3 FIR No. 50/10 PS - Jahangir Puri children, three sons and two daughters. Her son Roop Singh about eight years back suddenly had gone away somewhere from the house and has not returned till date. About six years back, the family members had married Bala w/o Roop Singh to Deepak @ Deep Chand son of her (complainant) dewar Dina Nath (Cheh Saal Pehle Hum Ghar Walon Ne Roop Singh Ki Patni Bala Ko Mere Dewar Dina Nath Ke Ladke Deepak @ Deep Chand Ki Chadar Udha Di Thi). Since then, her daughterin law Bala and her five children are being brought up by Deepak. She (complainant) does the sweeping and utensil cleaning work in the houses and she goes for work at 8.00 A.M (aath baje) in the morning and comes back to the house at 6.00 AM (Cheh baje) in the evening. On 04/02/2010, her daughterinlaw Bala had gone to her maternal house (maika) and she (complainant) had gone to the house of her daughterin law Sunita at Najafgarh (meri bahu Sunita kae pass Najafgarh gae thee) and had come back to the house in the evening. On 05/02/2010 at about 8:00 a.m. in the morning she (complainant) had left for her sweeping and utensil cleaning work and had come back to the house at about 6:00 p.m. in the evening but she did not find victim (name withheld) D/o Roop Singh at home. She (complainant) asked the children who told her that 3 of 202 4 FIR No. 50/10 PS - Jahangir Puri victim has been taken by papa with him. She (complainant) and her dewti Amrita searched a lot, the victim but she could not be found. On 06/02/2010, at about 8:00 a.m. in the morning phone of Deepak @ Deep Chand came at the phone of Amrita that victim is with him and there is nothing to worry and they to reach at 100 Number bus stop and he himself is bringing the victim. On hearing the phone of Deepak, she (complainant) and her dewti Amrita and her soninlaw Nirmal reached at 100 Number bus stop and after sometime, the victim alighted alone from a bus (bus sae akaile uttari). She (complainant) searched for Deep Chand but he could not be found, thereafter, she (complainant) brought the victim with her to the house, she (victim) was very much frightened and when she (complainant) asked her (victim) she started weeping. Then, her dewti Amrita asked her lovingly, then she (victim) while weeping told that papa (Deepak) yesterday (on 05/02/2010) had taken her to a room and after forcibly removing her kacchhi had committed galat kaam (rape) with her and when she (victim) started weeping, papa threatened her if anything was told to anyone then he will kill her. Thereafter, she (complainant) and her dewti had searched Deepak @ Deep Chand a lot but he could not be found and on the next date, on 4 of 202 5 FIR No. 50/10 PS - Jahangir Puri 07/02/2010, her son Bhoop Singh gave the information regarding this at No. 100. Deepak @ Deep Chand S/o Dina Nath by taking her grand daughter (victim) age 10 years with him had forcible committed galat kaam (rape) with her without her consent by closing her in a room, legal action be taken against him. Statement has been heard and is correct. On the basis of the statement of Smt. Krishna grandmother of the victim, from the inspection of the MLC of the victim and from the circumstances, finding that offences u/s 363/342/376(2)(f)/506 IPC appeared to have been committed, the case was got registered and the investigation was proceeded with by SI Sushila Rana. During the course of investigation, after finding sufficient evidence against accused Deepak @ Deep Chand, he was arrested on the identification of the victim. Medical examination of the accused was got conducted from BJRM Hospital vide MLC No. 5737 E.No. 9733. The sealed exhibits handed over by the Doctor after medical examination of the victim as well as that of accused Deepak @ Deep Chand were taken into Police possession and were deposited in the Malkhana. The disclosure statement of the accused was recorded. The pointing out memo of the place of incident was prepared on the pointing out of the accused. Site plan was prepared 5 of 202 6 FIR No. 50/10 PS - Jahangir Puri at the instance of the victim/prosecutrix. Statement of the prosecutrix u/s 164 Cr.P.C. was got recorded. Section 323 IPC was added in the case. Statement of the witnesses were recorded. The sealed exhibits were sent to the FSL.
Upon completion of the necessary further investigation Challan for the offences u/s 323/363/342/376(2)(f)/506 IPC was prepared against accused Deepak @ Deep Chand and was sent to the Court for trial.
2. Since the offence under Section 376(2)(f) IPC is exclusively triable by the Court of Session therefore, after compliance of the provisions of section 207 Cr.P.C. the case was committed to the Court of Session under section 209 Cr.P.C.
3. Upon committal of the case to the Court of session and after hearing on charge, prima facie a case under sections 363/342/376(2)
(f)/323/506 IPC was made out against accused Deepak @ Deep Chand. The charge was framed accordingly, which was read over and explained 6 of 202 7 FIR No. 50/10 PS - Jahangir Puri to the accused to which he pleaded not guilty and claimed trial.
4. In support of its case prosecution has produced and examined 20 witnesses. PW1 ASI Pradeep Kumar, PW2 Prosecutrix, PW3 Dr. Sumitra, SR, Gynaecology, BJRM Hospital, PW4 Smt. Krishna, PW5 HC Hitender, PW6 Amrita, PW7 - Lady Constable Bala Sharma, PW8 Nirmal, PW9 W/HC Asha, PW10 - Constable Jasvir, PW11 Sh. Satish Kumar, DJS, Secretary Delhi Legal Aid Services Authority, Rohini Courts, Delhi, PW12 W/Constable Subita, PW13 HC Rajesh Kumar, PW14 SI Umed Singh, PW15 Bhoop Singh, PW16 - Constable Sunit, PW17 Dr. Gopal Krishna, MO, BJRM Hospital, PW18 Ms. Saroj Bala, Principal, M. C. Primary School, Jahangir Puri, PW19 - Ms. L. Babyto Devi, Sr. Scientific Officer, FSL, Rohini, Delhi and PW20 SI Sushila Rana.
5. In brief the witnessography of the prosecution witnesses is as under : PW1 ASI Pradeep Kumar is the Duty Officer, who 7 of 202 8 FIR No. 50/10 PS - Jahangir Puri deposed that on 08/02/2010, he was posted as Duty Officer at PS - Jahangir Puri from 8:00 a.m. to 5:00 p.m. On that day, at about 11:15 a.m., Constable Jasbir gave him rukka sent by SI Sushila. On the basis of same, he recorded the FIR of the present case u/s 363/342/376(f)/506 of IPC. After registration of the FIR, he handed over the copy of FIR and rukka to Constable Jasbir to further handover the same to SI Sushila Rana. He has brought the original FIR Register, which bears his signature at point 'A'. Copy of same is Ex. PW1/A (Original seen and returned). He also made his endorsement on the rukka in the red encircled portion Ex. PW1/B and bears his signature at point 'A'.
PW2 Prosecutrix is the victim who deposed regarding the incident and proved her statement recorded u/s 164 Cr.P.C. Ex. PW2/A bearing her signature at point 'A' and also deposed regarding the investigational aspects which she joined.
PW3 Dr. Sumitra, SR, Gynaecology, BJRM Hospital, who deposed that she has been deputed by the MS, BJRM Hospital to depose in the present case on behalf of Dr. Mamta who had proceeded on 8 of 202 9 FIR No. 50/10 PS - Jahangir Puri maternity leave. She has seen the MLC of prosecutrix (name withheld) D/o Roop Singh, aged about 10 years R/o Jhuggi No. 555, H2 Block, Jahangir Puri, Delhi. The prosecutrix was examined by Dr. Mamta in the Gynaecology Department. Initially, internal medical examination of the prosecutrix could not be done as there was nobody from her family to give consent and patient was minor. The endorsement given by Dr. Mamta in this regard is at point 'X' on MLC Ex. PW3/A upon which she (PW3) identify signature of Dr. Mamta at point 'A'. On the same day, patient was again brought for her medical examination around 9:00 a.m. by the Police accompanied by her grandmother. After taking consent from the grandmother, the internal medical examination of prosecutrix was conducted by Dr. Mamta. The patient was brought for her medical examination with alleged history of sexual assault. On examination, patient was conscious and alert. General condition was fair, pulse 86 bits per minute, pallor moderate. After assault, patient took bath and changed her clothes. On local examination, no sign of external injury over breast, mouth, lip and abdomen. Pubic hair not developed, libia majora and minora normal, hymen torn, bruising present, no fresh bleeding, patient was not cooperative for examination and her sample 9 of 202 10 FIR No. 50/10 PS - Jahangir Puri collection. Gently cervical mucus sample taken. Vaginal washing was taken and blood sample and oral swab taken and sent for examination. The marginal notes given by Dr. Mamta on Ex. PW3/A is at point 'Y' which bears her signatures at point 'B'.
PW4 Smt. Krishna is the grand mother of the prosecutrix, who deposed that she has three sons and a daughter. All are married. Her elder son Roop Singh had got married with Bala. He has three sons and two daughters. Roop Singh became mentally imbalanced and left the house about four years ago and did not return back. Accused Deepak @ Deep Chand, present in Court, is the son of her Devar Dina Nath. Since her son Roop Singh had left the house, she married her daughter inlaw Bala with accused Deepak @ Deep Chand. On 04/02/2010, Bala had gone to her parents house because of death of her brother. She is doing the work of part time maid in kothis. On 05/02/2010, at about 8:00 a.m., she left her house for work and in the evening at 6:00 p.m., when she returned back, prosecutrix (name withheld), daughter of Roop Singh, then aged about ten years, was not at home. The other children of Roop Singh told her that prosecutrix (name withheld) was taken by Papa Deep 10 of 202 11 FIR No. 50/10 PS - Jahangir Puri Chand. They did not know where was prosecutrix (name withheld) taken by the accused. She kept searching for prosecutrix (name withheld) on 05/02/2010 and 06/02/2010. On 06/02/2010, at about 8:00 a.m., she received a phone call from accused saying that there was nothing to worry and that he was bringing prosecutrix (name withheld) and asked her to reach the bus stand of 100 number. She alongwith her grand daughter Amrita and soninlaw Nirmal reached at 100 number bus stand. After waiting for about half an hour, prosecutrix (name withheld) got down from a bus alone. She was not accompanied by accused Deep Chand. Her clothes were torn. She brought her to her house. She was very much afraid. Prosecutrix (name withheld) informed her grand daughter Amrita that she was taken to a room by accused Deepak where he took liquor and raped her. She also told her that accused had slapped her and had also threatened that in case she told about the incident to anyone, he would kill her. She searched for accused Deep Chand on 06/02/2010 and 07/02/2010. She then went to the Police Station and gave the statement Ex. PW4/A which bears her thumb mark at point 'A'. On 08/02/2010, accused was arrested by the Police on the identification of her grand daughter/prosecutrix (name withheld) vide arrest memo Ex.
11 of 202 12 FIR No. 50/10 PS - Jahangir Puri PW4/B which also bears her thumb mark at point 'A'. Police had got prosecutrix (name withheld) medically examined from BJRM Hospital. She was also put the leading question by the Learned Addl. PP for the State.
PW5 HC Hitender is the Duty Officer, who deposed that 07/02/2010, he was posted as HC at PS - Jahangir Puri. On that day, he was doing job of Duty Officer from 5:00 p.m. to 1:00 a.m. night. At around 10:20 p.m., he received an information from Wireless Operator of PS - Jahangir Puri regarding that a rape has been committed on a lady at H2 Block, Shah Alam Band, near Sai Baba Temple, Jahangir Puri. The said information was recorded vide DD No. 25A. True copy of the same is Ex. PW5/A (original seen and returned).
PW6 - Amrita (of whom prosecutrix is cousin), who deposed that accused Deepak present in the Court is her maternal uncle and the prosecutrix (name withheld) is her cousin. She does not remember the date, month and year. However, two years back, she received a call from accused that he would come with prosecutrix (name 12 of 202 13 FIR No. 50/10 PS - Jahangir Puri withheld) at 100 number Bus Stand, Adarsh Nagar. She alongwith her husband and her maternal grand mother reached there. Accused did not come there. However, prosecutrix (name withheld) came down from a bus at the said bus stand. She was perplexed. On seeing her alone, they got some suspicion. They took her to house and inquired the matter from her. She told that accused had beaten her and she narrated the entire facts to her and her maternal grand mother. Prosecutrix (name withheld) told that accused had committed sexual intercourse with her. Thereafter, prosecutrix (name withheld) was taken to PS - Jahangir Puri by her Chachi and grandmother. Police called her at PS and inquired the facts from her. She narrated all the facts which have been deposed to the Police. She does not remember her mobile number due to lapse of time. She was also crossexamined by the Learned Addl. PP for the State.
PW7 L/Constable Bala Sharma, who deposed that on 07/02/2010, she was working at CPCR, PHQ, Delhi from 8:00 p.m. to 8:00 a.m. At about 22:16 hrs, she received a call from mobile No. 9873123690 regarding incident of rape with a lady at H2, Shah Alam Bandh, Jahangir Puri, near Sai Baba Mandir. The said information was 13 of 202 14 FIR No. 50/10 PS - Jahangir Puri recorded in PCR Form and thereafter, it was supplied to concerned department. The original PCR Form is Ex. PW7/A. PW8 - Nirmal is the husband of PW6 - Amrita (of whom prosecutrix is cousin), who deposed that in the year, 2010, he was plying rickshaw. At present, he is doing work of Commission Agent in Azadpur Mandi. He used to go for work at about 9:00 a.m. and return at about 6:00/7:00 p.m. His wife Amrita used to work as domestic help at various houses and came back in the evening. He does not remember the date and month, but it was incident of 2010, he alongwith his family were present in their house. Accused Deep Chand made a call on the mobile of his wife and he asked him to pick up prosecutrix (name withheld) from 100 number Bus Stand at Adarsh Nagar. He alongwith his wife and grand mother of prosecutrix (name withheld) reached at 100 number bus stand. They waited there for some time and thereafter, a DTC Bus came at the bus stand and prosecutrix (name withheld) came down from the said bus. Prosecutrix (name withheld) was perplexed at that time. Thereafter, he alongwith his wife on motorcycle came back to house and prosecutrix alongwith her grand mother came on rickshaw to house.
14 of 202 15 FIR No. 50/10 PS - Jahangir Puri Thereafter, he went to his job. In the evening, when he came back to house, his wife informed him that accused Deepak present in the Court had committed "galat kaam" with prosecutrix (name withheld). First, prosecutrix (name withheld) was taken to a Doctor by his wife and her grand mother. His wife, uncle of prosecutrix (name withheld) and her grand mother took prosecutrix (name withheld) to PS. Thereafter, she was got medically examined by the Police. His statement was not recorded by the Police. He was also put the leading questions by the Learned Addl. PP for the State.
PW9 W/HC Asha, who deposed that on 08/02/2010, she was posted at PS - Jahangir Puri. On that day, she was present with IO SI Sushila Rana in the investigation of the present case. She alongwith IO, ASI Umed Singh, Constable Jasvir, Lady Constable Suvita had gone to BJRM Hospital alongwith prosecutix minor girl (name withheld) and her grand mother Smt. Krishna. Doctor examined the victim girl and MLC was prepared. Since the mother of the victim girl was not present, so her further examination could not be conducted on that day. IO met CMO of the Hospital, who asked the IO to come again at 9:00 a.m. 15 of 202 16 FIR No. 50/10 PS - Jahangir Puri Again at about 9 a.m., she alongwith other staff mentioned above and IO reached BJRM Hospital and the prosecutrix was medically examined. Lady Constable Suvita handed over one sealed parcel and sample seal to the IO. IO seized the same through seizure memo. On 13/04/2010, she collected three sealed parcels and two sample seals from MHC(M) HC Rajesh on the instructions of IO vide RC No. 18/21/10 dated 13/04/2010 for depositing the same at FSL, Rohini. She reached FSL Office and deposited the sealed parcel with sample seal and forwarding letter. She handed over the receiving copy of RC and receipt to the MHC(M). Till parcels remained in her possession, it was not tampered with.
PW10 - Constable Jasvir, who deposed that on 08/02/2010, he was posted at PS - Jahangir Puri. On that day, he was present with the IO SI Sushila Rana in the investigation of the present case. He alongwith IO, W/HC Asha, ASI Umed Singh and Lady Constable Suvita had gone to BJRM Hospital alongwith prosecutrix i.e. minor girl (name withheld) and her grand mother Smt. Krishna. Doctor examined the victim girl and MLC was prepared. Again in the morning at about 9:00 a.m., they had gone to BJRM Hospital and the prosecutrix (name 16 of 202 17 FIR No. 50/10 PS - Jahangir Puri withheld) was got medically examined. IO recorded the statement of Smt. Krishna and prepared the rukka and handed over him the same for registration of FIR. He had gone to the Police Station - Jahangir Puri and got the FIR registered. He returned to the spot i.e. House No. 1144, Gali No. 2, Khadda Colony, Swaroop Nagar, Delhi and handed over the copy of FIR and original rukka to the IO. His statement was recorded by the IO.
PW11 Sh. Satish Kumar, DJS, Secretary Delhi Legal Aid Services Authority, Rohini Courts, Delhi, who deposed that on 11/02/2010 he was working as Metropolitan Magistrate at Rohini Court Complex, Delhi. On that day, IO SI Sushila Rana produced before him an application with request to record the statement of the prosecutrix (name withheld) u/s 164 Cr.P.C. which was marked to him by ACMM1, Rohini Courts. The prosecutrix was produced before him by the IO. He took up the proceeding inside his Chamber. On put certain preliminary questions to the victim in order to ascertain her involuntariness (voluntariness) and competency to depose as witness. After being satisfied, he recorded her statement in his own handwriting. He read 17 of 202 18 FIR No. 50/10 PS - Jahangir Puri over the contents of the statement already Ex. PW2/A and she found the same correct and she signed the same at point 'A'. He gave his certificate regarding correctness of the proceeding on the foot of it. After completion of the proceeding, he directed the Ahlmad to convert the proceeding into a parcel and sealed with his seal 'SK' and directed further to send the same to the concerned Court through Learned ACMM. The proceeding running into three pages is now collectively Ex. PW11/A (including statement Ex. PW2/A). The identification statement of the IO is at encircled portion 'B' and his signatures are at point 'C'. IO moved an application for supply of copy of statement which was allowed. The application for recording the statement of prosecutrix is Ex. PW11/B and the application for copy of statement is Ex. PW11/C. PW12 W/Constable Subita, who deposed that on 08/02/2010, she was posted at PS - Jahangir Puri. On that day, she was present with the IO SI Sushila Rana in the investigation of the present case. She alongwith IO, ASI Umed Singh, Constable Jasvir and Lady HC Asha had gone to BJRM Hospital alongwith prosecutrix minor girl (name withheld) and her grand mother Smt. Krishna. Doctor examined 18 of 202 19 FIR No. 50/10 PS - Jahangir Puri the victim girl and MLC was prepared. Since the mother of the victim was not present, so her further examination could not be conducted on that day. IO met CMO of the Hospital, who asked the IO to come again at 9:00 a.m. On the same day at about 9:00a.m., she alongwith other staff mentioned above and IO reached BJRM Hospital and the prosecutrix (name withheld) was got medically examined. She handed over one sealed parcel and sample seal to the IO. IO seized the same through seizure memo. Ex. PW12/A, which bears her signatures at point 'A'. Her statement was recorded by the IO.
PW13 HC Rajesh Kumar is the MHC(M), who deposed that on 08/02/2010, he was posted as MHC(M) in PS Jahangir Puri. On that day, W/SI Sushila Rana deposited three pullindas sealed with the seal of 'MS BJRM' alongwith sample seal in the Malkhana. He made entry at Serial No. 3564 in Register No. 19. On 13/04/2010, on the instructions of IO, three sealed pullindas alongwith two sample seals were handed over to W/HC Asha for depositing in the FSL, Rohini vide RC No. 18/21/10. After depositing the same in FSL, she had deposited the acknowledgment receipt of the pullinda with him. He has brought 19 of 202 20 FIR No. 50/10 PS - Jahangir Puri the Register Nos. 19 and 21. The copy of the relevant entry of Register No. 19 is Ex. PW13/A. The copy of relevant entry of Register No. 21 is Ex. PW13/B. Copy of the acknowledgment receipt is Ex. PW13/C (OSR). Sealed pullindas remained intact during his custody.
PW14 SI Umed Singh is the initial Investigating Officer (IO) of the case, who deposed that on the intervening night of 0708/02/2010, he was posted as ASI in PS Jahangir Puri. On that night, he received DD No. 25A and thereafter, he alongwith Constable Jasbir reached at the spot i.e. at Jhuggi No. 555, H2 Block, near Sai Baba Mandir, Jahangir Puri, Delhi where he met complainant Smt. Krishna alongwith her grand daughter/prosecutrix (name withheld), age around eight year. He made inquiries and found it a case of rape and thereafter, he informed to W/SI Sushila, in the meantime, Constable Sunita came at the spot. Thereafter, he alongwith complainant, her grand daughter, W/Constable Sunita came in the PS. In the meantime, SI Sushila came in the PS. He handed over complainant and prosecutrix (name withheld) to W/SI Sushila. Thereafter, they reached in BJRM Hospital for the medical examination of prosecutrix (name withheld).
20 of 202 21 FIR No. 50/10 PS - Jahangir Puri W/HC Asha had also accompanied them. The MLC of prosecutrix (name withheld) was prepared but Doctor refused to get herself examine as the mother of the prosecutrix was not present. Thereafter, they came back to PS. Next day in the morning i.e. 08/02/2010, he alongwith HC Asha, W/SI Sushila, Constable Jasbir, prosecutrix (name withheld) and her grand mother again went to BJRM Hospital for medical examination of prosecutrix (name withheld). Prosecutrix (name withheld) was medically examined. W/SI Sushila recorded statement of Krishna and prepared rukka and handed over the same to Constable Jasbir for getting the FIR registered. After medical examination of prosecutrix (name withheld), Doctor handed over sealed pullinda containing the exhibits of prosecutrix (name withheld) and the same were seized by the IO. Thereafter, he alongwith IO, complainant, prosecutrix (name withheld) and W/HC Asha reached at Khadda Colony, Gali No. 2, House No. 1144 and from there at the instance of prosecutrix (name withheld), apprehended the accused Deepak @ Deep Chand. He was interrogated and arrested vide arrest memo already Ex. PW4/B, bearing his signature at point 'B', his personal search was conducted vide memo Ex. PW14/A, bearing his signature at point 'A'. He made disclosure statement Ex.
21 of 202 22 FIR No. 50/10 PS - Jahangir Puri PW14/B, bearing his signature at point 'A'. Accused pointed out the place of occurrence vide pointing out memo Ex. PW14/C, bearing his signature at point 'A'. IO prepared the site plan at the instance of prosecutrix (name withheld). In the meantime, Constable Jasbir came back at the spot and handed over the copy of FIR and original rukka to IO. Accused Deepak @ Deep Chand was medically examined through Constable Sumit and Constable Jasbir and after medical examination, Doctor handed over the pullinda containing the exhibits of Deepak @ Deep Chand which were seized by the IO. After completing the investigation, the case property was deposited in the Malkhana and accused was produced in the Court and sent to JC. He correctly identified the accused Deepak @ Deep Chand present in the Court.
PW15 Bhoop Singh is the uncle (Chacha) of the prosecutrix, who deposed that on 07/02/2010, he came back to his house from his work at about 07:007:30 p.m. her mother Krishna Devi told him that accused Deepak @ Deep Chand who is the step father of his niece/prosecutrix (name withheld) has taken prosecutrix (name withheld) at Swaroop Nagar and committed rape upon her. Thereafter, he informed 22 of 202 23 FIR No. 50/10 PS - Jahangir Puri the Police on 100 Number, from his mobile Number. Police came there and Police has arrested the accused Deepak @ Deep Chand present in the Court.
PW16 Constable Sunit, who deposed that on the intervening night of 0708/02/2010, he was posted as Constable in PS Jahangir Puri. On that night, ASI Umed Singh received DD No. 25A and thereafter, he alongwith him and Constable Jasbir reached at the spot i.e. at Jhuggi No. 555, H2 Block, near Sai Baba Mandir, Jahangir Puri, Delhi where they met complainant Smt. Krishna alongwith her grand daughter/prosecutrix (name withheld), age around eight year. IO made inquiries and found it a case of rape and thereafter he informed to W/SI Sushila, in the meantime, Constable Sunita came at the spot. Thereafter, he alongwith IO, complainant, her grand daughter and W/Constable Sunita came in the PS. In the meantime, SI Sushila came in the PS. ASI Umed Singh handed over complainant and prosecutrix (name withheld) to W/SI Sushila. Thereafter, they reached in BJRM Hospital for the medical examination of prosecutrix (name withheld). W/HC Asha had also accompanied them. The MLC of prosecutrix (name withheld) was 23 of 202 24 FIR No. 50/10 PS - Jahangir Puri prepared but Doctor refused to get her examine as the mother of the prosecutrix was not present. Thereafter, they came back to PS. Next day in the morning i.e. 08/02/2010, he alongwith HC Asha, W/SI Sushila, Constable Jasbir, prosecutrix (name withheld) and her grand mother and ASI Umed Singh again went to BJRM Hospital for medical examination of prosecutrix (name withheld). Prosecutrix (name withheld) was medically examined. W/SI Sushila recorded statement of Krishna and prepared rukka and handed over the same to Constable Jasbir for getting the FIR registered. After medical examination of prosecutrix (name withheld), Doctor handed over sealed pullinda containing the exhibits of prosecutrix (name withheld) and the same were seized by the IO. Thereafter, he alongwith ASI Umed Singh, W/SI Sushila Rana, complainant, prosecutrix (name withheld) and W/HC Asha reached at Khadda Colony, Gali No. 2, House No. 1144 and from there at the instance of prosecutrix (name withheld), apprehended accused Deepak @ Deep Chand. He was interrogated and arrested vide arrest memo already Ex. PW4/B, bearing his signature at point 'C', his personal search was conducted vide memo Ex. PW14/A, bearing his signature at point 'C'. He made disclosure statement Ex. PW14/B, bearing his signature at 24 of 202 25 FIR No. 50/10 PS - Jahangir Puri point 'B'. Accused pointed out the place of occurrence vide pointing out memo Ex. PW14/C, bearing his signature at point 'B'. IO prepared the site plan at the instance of prosecutrix (name withheld). In the meantime, Constable Jasbir came back at the spot and handed over the copy of FIR and original rukka to IO. Accused Deepak @ Deep Chand was medically examined through him and Constable Jasbir and after medical examination, Doctor handed over the pullinda containing the exhibits of Deepak @ Deep Chand which were seized by the IO, vide memo Ex. PW16/A bearing his signature at point 'A'. Thereafter, he alongwith IO and victim/prosecutrix (name withheld) and accused Deepak @ Deep Chand reached in the Rohini Court. Accused was produced in the Court and was sent to JC. He correctly identified the accused present in the Court. IO recorded his statement.
PW17 Dr. Gopal Krishna, MO, BJRM Hospital, who deposed that he has been deputed in this case by the MS of the Hospital to depose before the Court. He has seen MLC No. 5733 of prosecutrix (name withheld) D/o Roop Singh aged 10 years, female who was brought to Hospital for medical examination with alleged history of sexual 25 of 202 26 FIR No. 50/10 PS - Jahangir Puri assault. The patient was examined by Dr. Devinder, J.R., under the supervision of Dr. Rajesh Satija, CMO and thereafter, she was referred to S.R. Gynae. At present Dr. Devinder and Dr. Rajesh Satija are not working in their Hospital and their present whereabouts are not known. He is acquainted with their handwriting and signatures as he has seen them while writing and signing during the course of his duties. The MLC prepared by Dr. Devinder is Ex. PW17/A, bearing signature of Dr. Devinder at point 'A' and signature of Dr. Rajesh Satija who was the CMO on that day is at point 'B'. He has seen MLC No. 5737 of Deepak @ Deep Chand S/o Deena Nath aged 28 years, male who was brought to Hospital for medical examination with alleged history of committing sexual assault. The patient was examined by Dr. Danish, J.R., under the supervision of Dr. Ajay, CMO and thereafter, she was referred to S.R. Surgery whereupon he was examined by Dr. Vinayak. As per MLC Dr. Vinayak opined that there is nothing to suggest that he is not capable of performing sexual intercourse. At present, Dr. Danish, Dr. Ajay and Dr. Vinayak are not working in their Hospital and their present whereabouts are not known. He is acquainted with their handwriting and signatures as he has seen them while writing and signing during the course of his 26 of 202 27 FIR No. 50/10 PS - Jahangir Puri duties. The MLC is Ex. PW17/B bearing signature of Dr. Danish at point 'A', signature of Dr. Ajay at point 'B' who was the CMO on that day and signature of Dr. Vinayak at point 'C'.
PW18 Ms. Saroj Bala, Principal, M. C. Primary School, Jahangir Puri, who deposed that she has brought the summoned record. As per their record, one child prosecutrix (name withheld) D/o Sh. Roop Singh & Smt. Rekha was admitted in their school on 28/04/2005 vide Admission No. 5230 in class 1st. As per their record her date of Birth is 23/03/2000. The copy of the relevant entry encircled in red of the Admission Register is Ex. PW18/A, copy of Admission Form is Ex. PW18/B and copy of the Shapath Patra (Affidavit) executed by Rekha, mother of the child Ex. PW18/C (OSR).
PW19 - Ms. L. Babyto Devi, Sr. Scientific Officer, FSL, Rohini, Delhi who proved the biological and serological reports Ex. PW19/A and Ex. PW19/B respectively bearing her signatures at point 'A'.
PW20 - SI Sushila Rana is the subsequent 27 of 202 28 FIR No. 50/10 PS - Jahangir Puri Investigating Officer (IO) of the case, who deposed that on 08.02.2010 she was posted as SI at Rape Crisis Cell, SubDivision Jahangirpuri, Delhi. On that day at about 12.15 AM (night) she was telephonically informed by Duty Officer regarding DD No. 25A and it was informed that she had to come to PS Jahangirpuri to attend the above said call regarding rape. She came to PS Jahangir Puri where she found that ASI Umed Singh with his staff was already present in the room of Duty Officer. ASI Umed Singh told her about the offence of rape committed with the victim child/prosecutrix (name withheld) aged about 8 years at that time. He also produced victim/prosecutrix (name withheld) and her grandmother Smt. Krishna before her, who were also present in the room of Duty Officer. She made inquiry about the offence from Smt. Krishna and also from the prosecutrix (name withheld). Then she alongwith ASI Umed Singh, Constable Jasveer, Constable Sunit, L/Constable Suvita, HC Asha, prosecutrix and her grandmother went to BJRM hospital. There she got conducted the medical examination of prosecutrix (name withheld) in the supervision of HC Asha and Constable Suvita. The doctor refused to conduct the gynaecological examination of prosecutrix (name withheld) as her mother was not 28 of 202 29 FIR No. 50/10 PS - Jahangir Puri present. She informed the Sampoorana NGO and Counselor Ms. Taruna reached at the BJRM hospital, thereafter, the gynaecological examination of the prosecutrix was conducted by the doctor. L/Constable Suvita produced the MLC of prosecutrix and also the sealed exhibits alongwith sample seal to her. These exhibits were taken into police possession vide seizure memo already Ex. PW12/A bearing her signature at PointB. She recorded the statement of Smt. Krishna in the hospital and made her endorsement Ex. PW20/A on the same. She handed over the tehrir to Constable Jasbir and he was sent to PS Jahangirpuri for registration of FIR. Then she alongwith her staff, prosecutrix and her grandmother went to the spot that is the house of Mahinder situated at Gali No. 2, H.No. 1144, Khada Colony, Swaroop Nagar, Delhi. The door of the house was knocked. Same was opened by accused Deepak and he was identified by the prosecutrix (name withheld) being the same person who had committed 'galat kaam' with her. She also informed that accused Deepak is her step father. In the meantime, Constable Jasbir also came to the spot with copy of FIR and original rukka. She interrogated accused Deepak and arrested him in this case vide arrest memo already Ex. PW4/B bearing her signature at 29 of 202 30 FIR No. 50/10 PS - Jahangir Puri PointB. She got conducted the personal search of accused Deepak through Constable Sunit vide personal search memo already Ex. PW14/A bearing her signature at PointB. She prepared the site plan Ex. PW20/B at the instance of prosecutrix (name withheld) as she informed her that offence was committed in the abovesaid house. She recorded the disclosure statement of accused. Same is already Ex. PW14/B. She also prepared pointing out memo. Same is already Ex. PW14/C. In the meantime, Sh. Bhoop Singh, Chacha of prosecutrix (name withheld) also came to the spot. She sent prosecutrix alongwith her grandmother, Sh. Bhoop Singh and HC Asha to Rohini Court. She alongwith Constable Jasbir, ASI Umed Singh and Constable Sunit took accused Deepak to BJRM hospital. She got conducted the medical examination of accused Deepak in the supervision of Constable Sunit. After the medical examination Constable Sunit handed over the MLC of accused and also two sealed parcels alongwith sample seal to her. Same were taken into police possession vide seizure memo already Ex. PW16/A. Then she took accused Deepak to Rohini Court. Accused was sent to JC. Prosecutrix (name withheld) was also produced before the court for recording her statement U/s 164 Cr.P.C, however, on that day her 30 of 202 31 FIR No. 50/10 PS - Jahangir Puri statement could not be recorded and she was produced before CWC. Thereafter, prosecutrix (name withheld) was sent to children home on the direction of CWC. She alongwith staff came to PS. There she recorded the statements of her staff and public witnesses. On the next day she visited Children Home and took the prosecutrix to CWC. On that day she moved the application for recording of the statement of the prosecutrix which was fixed for 11.02.2010. On 11.02.2010 she produced the prosecutrix (name withheld) before the Court and her statement U/s 164 Cr.P.C was got recorded. During investigation she also obtained school certificate of the prosecutrix from MC Primary School, H1 reflecting the date of birth as 23.03.2000. She tendered the photocopy of school certificate of prosecutrix Mark X1. On 13.04.2010 after obtaining the permission from DCP (Crime) she got deposited the exhibits at FSL Rohini through HC Asha vide RC No. 18/21/10. After completing the investigation chargesheet was prepared and filed in the Court. She correctly identified accused Deepak present before the Court.
The testimonies of the prosecution witnesses shall be dealt with in detail during the course of appreciation of evidence.
31 of 202 32 FIR No. 50/10 PS - Jahangir Puri
6. Statement of accused Deepak @ Deep Chand was recorded u/s 313 Cr.P.C. wherein he pleaded innocence and false implication. Accused Deepak @ Deep Chand did not opt to lead any defence evidence.
7. Learned Counsel for the accused submitted that on 07.02.2010 at about 10.17 p.m., one Mr. Bhoop Singh claims to have reported from his mobile phone to PCR at Tel. No. 100 that a rape has been committed on a lady at H2, Shah Alam Band in Jahangir puri near Sai Baba Mandir. It was so recorded on 07.02.2010 at about 10:17 p.m. by PW7 L/Constable Bala Sharma who recorded it as Ex. PW7/A & who deposed that she received such call from Cell No. 9873123690 whereupon she informed so to Jahangirpuri at 10.20 p.m. where PW5 HC Hitender received that message and recorded DD No. 25A (Ex. PW5/A). He further submitted that so, as per prosecution, Rape was on a lady and not a 10 year old minor girl; no one told that alleged rape took place on 05.02.2010; no one said that Deepak had done the alleged rape; no one said PW2 prosecutrix (name withheld) was the victim of alleged 32 of 202 33 FIR No. 50/10 PS - Jahangir Puri rape; no one said that PW2 prosecutrix (name withheld) was kidnapped; no one said PW2 prosecutrix (name withheld) was kept in a locked room. He further submitted that as per prosecution & as per First Informer of information, Place of occurrence/rape was H2, Shah Alam Band in Jahangirpuri near Sai Baba Mandir & not at H. No. 1144, Gali No. 2, Khadda Colony. He further submitted that as per prosecution & as per First Informer of information, no time of occurrence was disclosed. He further submitted that it was not reported that alleged kidnapping & rape was made on 05.02.2010 or that a minor girl aged 10 years was raped or that rape was made at a place other than H2, Shah Alam Band in Jahangir Puri near Sai Baba Mandir. Learned Counsel further submitted that DD No. 25A shows that HC Hitender (PW5) gave it to Constable Jasvir for taking it to ASI Umed Singh for necessary action but HC Hitender (PW5) did not depose in his testimony before the Court that he gave DD No. 25A at 1020 pm to Constable Jasvir (PW10) for taking it to ASI Umed Singh for necessary action. Even, Constable Jasvir (PW10) did not depose in his testimony that HC Hitender (PW5) gave him DD No. 25A on 07.02.2010 at 1020 pm for taking it to ASI Umed Singh for necessary action or that Constable Jasvir (PW10) gave DD No. 33 of 202 34 FIR No. 50/10 PS - Jahangir Puri 25A to him or to ASI Umed Singh on 07.02.2010 at 1020 pm or at any other time. It was not so stated even in Statement under Sec. 161 Cr.P.C. by Constable Jasvir to IO. Even, Constable Jasvir (PW10) did not depose in his testimony that he went to H.No. 1144, Gali No. 2, Khadda Colony on 07.02.2010 or on receipt of DD No. 25A. Even, ASI Umed Singh did not depose in his testimony that Constable Jasvir (PW10) brought to him DD No. 25A on 07.02.2010 at 1020 pm or at any other time, allegedly given to Constable Jasvir (PW10) by HC Hitender (PW5) at 1020 pm for taking it to him for necessary action. There is no statement of ASI Umed Singh under Sec. 161 Cr.P.C. to IO. Even, IO SI Sushila Rana did not depose in her testimony that Constable Jasvir (PW10) brought DD No. 25A on 07.02.2010 at 1020 pm or at any other time to ASI Umed Singh, allegedly given to Constable Jasvir (PW10) by HC Hitender (PW5) at 1020 pm for talking it to him for necessary action or that ASI Umed Singh ever gave DD No. 25A to IOSI Sushila Rana at any time and yet, she acting as IO in this case, filed it along with Final report U/sec. 173 Cr.P.C. without disclosing as to from where did she got it - when she got it from whom she got it. Learned Counsel further submitted that so, it is doubtful and not proved by prosecution 34 of 202 35 FIR No. 50/10 PS - Jahangir Puri that HC Hitender (PW5) gave DD No. 25A on 07.02.2010 at 1020 pm or at any other time to Constable Jasvir (PW10) for taking it to ASI Umed Singh for necessary action or that Constable Jasvir (PW10) ever gave DD No. 25A to ASI Umed Singh on 07.02.2010 at 1020 pm or at any other time. Learned Counsel further submitted that accused Deepak is son of Devar of Smt. Krishna (complainant PW4) in this case while alleged victim/prosecutrix (name withheld) is her granddaughter. So far Mr. Bhoop Singh is concerned, he is son of Smt.Krishna (complainant - PW4) and therefore, they all knew accused Deepak & alleged victim/prosecutrix (name withheld) very well. Even Smt. Amrita - another grand daughter of Smt. Krishna & her husband Mr. Nirmal - they all knew accused Deepak & alleged victim/prosecutrix (name withheld) very well. Learned Counsel further submitted that as per prosecution story, at the time of making PCR Call on 07.02.2010 at 1017 pm, Smt. Krishna (ComplainantPW4), Prosecutrix (name withheld) (PW2), Mr. Bhoop Singh (PW15, Smt. Amrita (PW6) & her husband Mr. Nirmal (PW8) they all knew accused Deepak & alleged victim/prosecutrix (name withheld) very well. Yet in PCR Call, no one named the accused or the victimwhy? He further submitted that the 35 of 202 36 FIR No. 50/10 PS - Jahangir Puri prosecution has miserably failed to prove beyond doubts in this case without even giving any explanation as to why no one named the accused or the victim in PCR Call made well after more than 48 hours of alleged rape when the name of alleged victim & alleged accused and time of occurrence and place of occurrence was known to all Smt. Krishna (Complainant PW4), Prosecutrix (name withheld) (PW2), Mr. Bhoop Singh (PW15), Smt. Amrita (PW6) & her husband Mr. Nirmal (PW8). Learned Counsel further submitted that as per PW14 ASI Umed Singh, he reached at the spot i.e. Jhuggi No. 555, H Block, Near Sai Baba Mandir, Jahangir Puri on the intervening night of 07/08.02.2010 along with Constable Jasvir (PW10) but Constable Jasvir as PW10 did not corroborate such theory planted by ASI Umed Singh. Even alleged victim/prosecutrix (name withheld) (PW2), Smt. Krishna (PW4), Smt. Amrita (PW6), Mr. Nirmal (PW8), Mr. Bhoop Singh (PW15) or any other PWs had not corroborated the said story of PW14 ASI Umed Singh that he reached at the spot i.e. Jhuggi No. 555, HBlock, Near Sai Baba Mandir, Jahangir Puri on the intervening night of 7/8.02.2010 along with Constable Jasvir. PW14 ASI Umed Singh further deposed that Constable Sunita also reached the spot i.e. Jhuggi No. 555, HBlock, 36 of 202 37 FIR No. 50/10 PS - Jahangir Puri Near Sai Baba Mandir, Jahangir Puri on the intervening night of 07/08.02.2010 but no such L/Constable Sunita was produced in the Witness Box in the Court by the prosecution. One Constable Subita appeared as PW12 in this case but she never corroborated of PW14 ASI Umed Singh that she also reached at the spot i.e. Jhuggi No. 555, H Block, Near Sai Baba Mandir, Jahangir Puri on the intervening night of 07/08.02.2010. PW16 Ct. Sunit also deposed that on the intervening night of 07/08.02.2010, he was posted at PS Jahangir Puri & that he along with PW14 ASI Umed Singh & Constable Jasbir reached the spot i.e. Jhuggi No. 555, HBlock, Near Sai Baba Mandir, Jahangir Puri on the intervening night of 07/08.02.2010. However, PW14 ASI Umed Singh or Constable Jasvir (PW10) did not state so in their testimony before the Court that PW16 Constable Sunit along with PW14 ASI Umed Singh & Constable Jasbir reached the spot i.e. Jhuggi No. 555, H Block, Near Sai Baba Mandir, Jahangir Puri on the intervening night of 07/08.02.2010. why? Learned Counsel further submitted that as per story of PW14 ASI Umed Singh, he came back to PS alongwith Ms. Payal, Smt. Krishna but gave no reasons as to why Mrs. Amrita or Mr. Nirmal or Mr. Bhoop Singh or any of the 3 brothers of Payal or any other 37 of 202 38 FIR No. 50/10 PS - Jahangir Puri son of Smt. Krishna did not come back to PS with them. Why ladies alone came to PS? Learned Counsel further submitted that significantly, PW14 ASI Umed Singh did not depose that prosecutrix (name withheld) Smt. Krishna, Mrs. Amrita or Mr. Nirmal or Mr. Bhoop Singh or any of the 3 brothers of prosecutrix (name withheld) or any other son of Smt. Krishna told him that it was prosecutrix (name withheld) who had been raped or that it was accused Deepak who had allegedly raped her or that any one gave him the name of the accused or victim or time of occurrence. Learned Counsel further submitted that this is strange and it is not believable that police goes to a spot of occurrence of alleged kidnapping & rape and alleged rape victim was present, her grand mother Smt. Krishna was present, her relatives Mrs. Amrita, Mr. Nirmal and Mr. Bhoop Singh and her 3 brothers and her one sister were present and as per prosecution story, they all knew that 2 days ago, prosecutrix (name withheld) was raped by accused Deepak but yet no one named the accused or the victim or time of occurrence or place of occurrence. Learned Counsel further submitted that PW2 prosecutrix (name withheld) and PW4 Smt. Krishna do not corroborate such story that IO Mrs. Sushila Rana made any inquiries from them at PS. No record of 38 of 202 39 FIR No. 50/10 PS - Jahangir Puri such inquiry had been produced on record of this case. Even PW14 ASI Umed Singh does not say that IO Sushila Rana made any inquiries from PW2 prosecutrix (name withheld) or PW4 Smt. Krishna at PS on 08.02.2010. Learned Counsel further submitted that assuming that IO Sushila Rana made inquiries from PW2 prosecutrix (name withheld) and PW4 Smt. Krishna at PS on 08.02.2010, why would PW2 prosecutrix (name withheld) or PW4 Smt. Krishna conceal it from the Court that IO Mrs. Sushila Rana made inquiries from PS on 08.02.2010 and at least in such inquiry, PW2 prosecutrix (name withheld) as well as PW4 Smt. Krishna must have and should have told IO Sushila Rana that PW2 prosecutrix (name withheld) was alleged victim or that the accused Deepak had committed the rape & kidnapping on PW2 prosecutrix (name withheld) or that such alleged rape was made on 05/02/2010 but IO Mrs. Sushila Rana nowhere stated so or noted so in case records nor did she so deposed in her testimony in the Court. Learned Counsel further submitted that, why the alleged victim PW2 prosecutrix (name withheld) and her grandmother PW4 Smt. Krishna would conceal firstly from ASI Umed Singh and then, from IO Mrs. Sushila Rana that PW2 prosecutrix (name withheld) was alleged victim or that the accused 39 of 202 40 FIR No. 50/10 PS - Jahangir Puri Deepak had committed the kidnapping & rape on PW2 prosecutrix (name withheld) or that such alleged rape was made on 5/2/2010 and that she had taken bath after such rape twice and that she had changed her clothes twice or that her clothes were torn in rape or that after/during rape, the accused Deepak threatened PW2 prosecutrix (name withheld) to kill her if she would tell about her rape to anyone. No explanation is given by the prosecution or by PW2 prosecutrix (name withheld) or by PW4 Smt. Krishna/IO Mr.s Sushila Rana or by ASI Umed Singh for such blunder. Learned Counsel further submitted that in fact, IO Mrs. Sushila Rana had not disclosed as to what was the outcome of alleged inquiries made by her at PS from PW2 prosecutrix (name withheld) and PW4 Smt. Krishna. Learned Counsel further submitted that assuming that victim/prosecutrix (name withheld) (PW2), Smt. Krishna (PW4), Smt. Amrita (PW6), Mr. Nirmal (PW8), Mr. Bhoop Singh (PW15) and any of the 3 brothers of prosecutrix (name withheld) or her sister or any other son of Smt. Krishna told ASI Umed Singh that alleged rape was made on 05.02.2010 and that she had taken bath after such rape twice and that she had changed her clothes twice or that her clothes were torn in rape or that after/during rape, the accused Deepak @ Deep Chand 40 of 202 41 FIR No. 50/10 PS - Jahangir Puri slapped PW2 prosecutrix (name withheld) or that she was kept in a closed room or that the accused Deepak @ Deep Chand threatened PW2 prosecutrix (name withheld) to kill her if she would tell about her rape to anyone, why did PW14 ASI Umed Singh did not inform so to IO Sushila Rana, then Why the statement of PW14 ASI Umed Singh to that effect was not recorded u/s 161 Cr.PC by IO and why did he not depose so in the Court in his testimony and why an FIR was not so recorded after getting full details of that matter. The prosecution appears to be concealing truth from the Court. Learned Counsel further submitted that further assuming that victim/prosecutrix (name withheld) (PW2), Smt. Krishna (PW4) or Smt. Amrita (PW6), Mr. Nirmal (PW8), Mr. Bhoop Singh (PW15) and any of the 3 brothers of prosecutrix (name withheld) or her sister or any other son of Smt. Krishna told IO Sushila Rana that alleged rape was made on 05.02.2010 and that PW2 prosecutrix (name withheld) had taken bath after such rape twice and that she had changed her clothes twice or that her clothes were torn in rape or that after during rape, the accused Deepak @ Deep Chand slapped PW2 prosecutrix (name withheld) or that she was kept in a closed room or that the accused Deepak threatened PW2 prosecutrix 41 of 202 42 FIR No. 50/10 PS - Jahangir Puri (name withheld) to kill her if she would tell about her rape to anyone, why did IO Sushila Rana did not depose so in the Court in her testimony and why did or PW2 prosecutrix (name withheld) or PW4 Smt. Krishna did not depose so in the Court in their testimony and why an FIR was not so recorded after getting full details of that matter. Learned Counsel further submitted that assuming that victim (name withheld) (PW2), Smt. Krishna (PW4) Smt. Amrita (PW6) Mr. Nirmal (PW8) Mr. Bhoop Singh (PW15) and any of the 3 brothers of Payal or her sister or any other son of Smt. Krishna did not tell ASI Umed Singh that alleged rape was made on 06.02.2010 and that PW2 prosecutrix (name withheld) had taken bath after such rape twice and that she had changed her clothes twice or that her clothes were torn in rape or that after/during rape, the accused Deepak slapped PW2 prosecutrix (name withheld) or that she was kept in a closed room or that the accused Deepak threatened PW2 prosecutrix (name withheld) to kill her if she would tell about her rape to any one and that it was not so told by PW2 prosecutrix (name withheld) and PW4 Smt. Krishna to IO Sushila Rana at P.S., how PW14 ASI Mr. Umed Singh came to a conclusion that it was a rape case as informed by him to IO Sushila Rana on phone as per his deposition and why IO Mrs. 42 of 202 43 FIR No. 50/10 PS - Jahangir Puri Sushila Rana or any other police staff took PW2 prosecutrix (name withheld) for MLC for rape. Learned Counsel further submitted that the victim (name witheld) (PW2), Smt. Krishna (PW4), Smt. Amrita (PW6), Mr. Nirmal (PW8), Mr. Bhoop Singh (PW15) and any of the 3 brothers of prosecutrix (name withheld) or her sister or any other son of Smt. Krishna did not tell ASI Umed Singh at first instance, on 07.02.2010 as well as to IO Mrs. Sushila Rana at second instance, at PS on 08.02.2010 that alleged rape was made on 06.02.2010 and that PW2 prosecutrix (name withheld) had taken bath after such rape twice and that she had changed her clothes twice or that her clothes were torn in rape or that after / during rape, the accused Deepak Chand slapped PW2 prosecutrix (name withheld) or that she was kept in a closed room or that the accused Deepak Chand threatened PW2 prosecutrix (name withheld) to kill her if she would tell about her rape to any one and that Mr. Bhoop Singh also did not so inform to PCR. Learned Counsel further submitted that the only irresistible inference that can be drawn now is that so such thing happened as complained of in this case. Learned Counsel further submitted that it is claimed by the Prosecution in the Rukka Ex. PW20 that IO Mrs. Sushila Rana along with PW2 43 of 202 44 FIR No. 50/10 PS - Jahangir Puri prosecutrix (name withheld), PW4 Smt. Krishna, PW14 ASI Mr. Umed Singh, PW10 Ct. Jasvir & PW9 HC Asha went to BJRM Hospital & they got done medical examination of PW2 prosecutrix (name withheld) through PW9 HC Asha whereupon MLC no. 5733 was made at 2.35 a.m. on 08.02.2010 by Dr. Rajesh Satija & Dr. Mamta and that PW2 prosecutrix (name withheld) was again examined at 9 a.m. on 08.02.2010 as per Endorsement no. E9632 by Dr. Mamta and then, IO Mrs. Sushila Rana obtained Statement of PW4 Smt. Krishna and found commission of offences complained of in this case and so, she sent that Rukka whereupon FIR No. 50/2010 was recorded at 11.15 a.m. on 08.02.2010. Learned counsel further submitted that interestingly, PW20 IO Mrs. Sushila Rana deposed in Witness Box that Constable Sunit, L/ Constable Subita also went with her to BJRM Hospital at that time. PW9 L/ Constable Asha also claimed that PW12 L/ Constable Subita also went with IO Mrs. Sushila Rana to BJRM Hospital at that time but she did corroborate IO Mrs. Sushila Rana that Constable Sunit also went with them to BJRM Hospital at that time. PW10 Constable Jasvir also claimed that PW12 L/ Constable Subita also went with IO Mrs. Sushila Rana to BJRM Hospital at that time but he also did corroborate IO Mrs. 44 of 202 45 FIR No. 50/10 PS - Jahangir Puri Sushila Rana that Constable Sunit also went with them to BJRM Hospital at that time. PW12 L/ Constable Subita also claimed that she herself also went with IO Mrs. Sushila Rana to BJRM Hospital at that time but she also did corroborate IO Mrs. Sushila Rana that Constable Sunit also went with them to BJRM Hospital at that time. Learned Counsel further submitted that PW14 ASI Mr. Umed Singh also claimed that he also went with IO Mr.s Sushila Rana to BJRM Hospital at that time but he also did corroborate IO Mrs. Sushila Rana that Constable Sunit or PW10 Constable Jasvir or PW12 L/ Constable Subita also went with them to BJRM Hospital at that time. PW16 Constable Sunit also claimed that he also went with IO Mrs. Sushial Rana to BJRM Hospital at that time but he also did corroborate IO Mrs. Sushila Ran that PW10 Constable Jasvir or PW12 L/ Constable Subita also went with them to BJRM Hospital at that time. PW2 prosecutrix (name withheld) as well as PW4 Smt. Krishna also did not depose in the Court to the effect that PW14 ASI Mr. Umed Singh, PW16 Constable Sunit, PW12 L/ Constable Subita, PW9 L/ Constable Asha, PW10 Constable Jasvir or IO Mrs. Sushila Rana accompanied them to said Hospital. Learned Counsel further submitted that hence, it is doubtful if Constable Sunit or 45 of 202 46 FIR No. 50/10 PS - Jahangir Puri PW10 Constable Jasvir or PW12 L/ Constable Subita or PW9 L/ Constable Asha also went with PW2 prosecutrix (name withheld) & PW4 Smt. Krishna to BJRM Hospital at that time. In any case, why their names did not appear in Rukka Ex. PW20/A - the prosecution had miserably failed to explain it ? Learned Counsel further submitted that the Medical evidence in this case nowhere suggested that PW2 prosecutrix (name withheld) was kidnapped or raped, as alleged. Regarding Medical Examination of PW2 prosecutrix (name withheld) at 2.35 a.m. on 08.02.2010, it is prosecution case that doctors refused to conduct the gynaecological medical examination of PW2 prosecutrix (name withheld) as her mother was not present & MLC Ex. PW3/A showed that General physician did not find any abnormality in medical examination of PW2 prosecutrix (name withheld) on 08.02.2010 at 2:35 A.M. & it was opined that Menarche (commencement of menstrual function in women) had not occurred. Even gynaecological medical examination of PW2 prosecutrix (name withheld) revealed that she had a history of sexual assault repeatedly. She had not external injury over her face or abdomen and that shows that she was not at all forced for alleged rape / kidnapping. When Medical Examination of PW2 46 of 202 47 FIR No. 50/10 PS - Jahangir Puri prosecutrix (name withheld) was alleged conducted at 9:00 / 9:30 a.m. even her mother was not present admittedly & it was opined that Menarche (commencement of menstrual function in women) had not occurred. Again, the doctor noted that PW2 prosecutrix (name withheld) had a history of sexual assault repeatedly & last time 2 days ago. Her X ray advised at 3.00 am was not performed. No fresh internal bleeding was found by such doctor. PW2 prosecutrix (name withheld) had no sign of external injury on breast, mouth, hip & abdomen and that showed that she was not at all forced for alleged rape / kidnapping. Doctor found that PW2 prosecutrix (name withheld) was not cooperative in her Medical Examination. Neither the Physician nor Gynaecologist confirmed alleged rape or kidnapping. It had been noted in MLC NO. 5733 Ex. PW17/A that PW2 prosecutrix (name withheld) had alleged History of sexual assault repeatedly. As per Endorsement NO. E9632 on MLC NO. 5737, no finding of rape was returned by Gynaecologist Dr. Mamta. She is reported to have taken up Vaginal Washing, Urinal (uniral) blood sample, Oral swab, blood sample and cervical mucus collection of Prosecutrix (name withheld) during her medical examination from 9:30 AM to 10:10 AM and Dr. Mamta give them in a parcel to L/Ct. Asha who in turn gave 47 of 202 48 FIR No. 50/10 PS - Jahangir Puri it to IO Mrs. Sushila Rana who allegedly deposited the same in Malkhana on 08.02.2010 but the same was not sent to FLS for 63 days. Now, it is not the case of prosecution that they had preserved the said materials in required / desired conditions and were sent to FSL through L/ Constable Asha only on 13.04.2010. The prosecution has not given any explanation for such 63 days in this case. In FSL, such samples were tested on 19.01.2011 i.e. after total delay of 353 days of sample taking date of 08.02.2010. Learned Counsel further submitted that it can be reasonably presumed that the chemical & physical properties of such sample had changed a lot during 353 days. Learned Counsel further submitted that FSL Report does not support prosecution case of rape as result of analysis Ex. PW19/A shows that; semen could not be detected on cotton swab or cervical mucus collection of prosecutrix (name withheld) ; semen could not be detected in vaginal wash of PW2 prosecutrix (name withheld); semen could not be detected on oral swab of PW2 prosecutrix (name withheld); semen could not be detected on 1st slide of oral swab of PW2 prosecutrix (name withheld); semen could not be detected on 2nd slide of oral swab of PW2 prosecutrix (name withheld); semen could not be detected on urine & oxilated blood vial;
48 of 202 49 FIR No. 50/10 PS - Jahangir Puri Human semen could be detected only on underwear but the prosecution had not stated as to whom did that underwear belonged. Assuming that such underwear was that of the accused Deepak, he is a young boy of 23 years age & that is possible but in any case, it is not the prosecution case that it was same underwear that was same underwear that was worn by the accused Deepak at the time of alleged rape. Now assuming that such underwear was that of PW2 prosecutrix (name withheld), it is not the prosecution case that it was same underwear that was worn by PW2 prosecutrix (name withheld) at the time of alleged rape. Lastly, here it may be noted that the case of the prosecution is that before the alleged rape, the underwear / kutchi of PW2 prosecutrix (name withheld) has been removed by the accused Deepak and therefore, it could not have traces of semen thereon until and unless some body would have set up a case that PW2 prosecutrix (name withheld) used it for cleaning / sweeping her organs or that she wore that again immediate after the allged rape but that is not the case of prosecution herein. Further, semen stains on said underwear had not reaction as per Ex. PW19/B; FSL had not reported that the alleged semen was matching to semen of Deepak; Regarding Blood samples, during inordinate unexplained delay period of 49 of 202 50 FIR No. 50/10 PS - Jahangir Puri 353 days, they all had putrified and hence no opinion was given qua them by FSL. Learned counsel submitted that so, it is very clear that even FSL had not confirmed kidnap / Rape of prosecutrix (name withheld). Learned Counsel further submitted that there is no medical record to confirm any allegations of rape or physical beating/slapping of PW2 prosecutrix (name withheld) by the accused Deepak Chand in this case and that may be called sufficient enough to convict the accused in this case. Learned Counsel further submitted that time & place of occurrence: are not stated in Charge framed by the court. Learned Counsel further submitted that in statement under Section 161 and under Section 164 Cr. PC, PW2 prosecutrix (name withheld) stated that she was peeling choliya in front of her house in H2 Block of Jahangir Puri (when the commission of offence began) and from there the accused Deepak took her away to a room at Swaroop Nagar but before the court, she deposed that the accused Deepak was standing at C Block Mandir at Jahangir Puri & that the accused Deepak called her there and from there the accused took her away to a room at Swaroop Nagar. How did accused called PW2 prosecutrix (name withheld) from H2 Block of Jahangir Puri to CBlock Mandir - is doubtful / suspicious. Now, if accused 50 of 202 51 FIR No. 50/10 PS - Jahangir Puri Deepak was standing at CBlock Mandir at Jahangirpuri & PW2 prosecutrix (name withheld) was H2 Block - How did accused called PW2 prosecutrix (name withheld) - is doubtful suspicious as manner of such calling is not explained by prosecution and such fact of alleged calling of PW2 prosecutrix (name withheld) by the accused Deepak from H2 Block of Jahangir Puri to CBlock Mandir was not stated by any witness in this case. How did accused took PW2 prosecutrix (name withheld) from H2 Block of Jahangirpuri or from CBlock Mandir to Swaroop Nagar - is also doubtful / suspicious as it was also not stated / explained by any witness in this case. Was it on foot, by car, by cycle or by scooter / motor cycle or by bus / auto /taxi. Place from where accused took prosecutrix (name withheld) is also doubtful in this case. As per statement under Section 161 and under Section 164 Cr. PC, PW2 prosecutrix (name withheld) stated that she was taken away by accused from front of her house but before the Court she deposed that accused took her away from C Block Mandir. Time at which accused took Prosecutrix (name withheld) is also doubtful in this case. It is not stated by any witness in this case as to what time PW2 prosecutrix (name withheld) was taken away by accused from front of her house / C Block 51 of 202 52 FIR No. 50/10 PS - Jahangir Puri Mandir. Learned Counsel for accused further submitted that when PW4 Smt. Krishna came back home at 6 pm, she reportedly found PW2 prosecutrix (name withheld) missing from her home & for 2 days, she did not report such missing person to police. It is unbelievable. However, when PW4 Smt. Krishna allegedly learnt at 6 pm from other children of Mr. Roop Singh [i.e. 3 brothers and one sister of PW2 prosecutrix (name withheld)] that accused took away PW2 prosecutrix (name withheld), neither she nor Mrs. Amrita nor her husband ever called on mobile phone of Deepak on February 5 or February 6 or February 7 or February 08, 2010 though they kept on searching PW2 prosecutrix (name withheld) during such days & as per their story, even Deepak was missing for those days and they also did not report missing persons Deepak to police during such time. It is unbelievable. It is not the case of the prosecution that the accused Deepak had not mobile phone with him or that they were not aware of his mobile phone number. All this is really unnatural & Unbelievable. It was not worthly of credence. In fact, such story does not inspire confidence in prosecution case. Learned Counsel further submitted that assuming that PW4 Smt. Krishna went to her job at 8 am and she came back home at 6 pm, one can say that the accused 52 of 202 53 FIR No. 50/10 PS - Jahangir Puri Deepak took away PW2 prosecutrix (name withheld) some time between 8 am to 6 pm ( as the prosecution had failed to prove that she had gone or not gone to her school on that date of alleged occurrence), then PW2 prosecutrix (name withheld) must have required & eaten some snacks or some foods atleast between 6 pm to late night when she alleged to have been raped. PW2 prosecutrix (name withheld) had stated in her statement when it was very late at night, alleged rape took place. Now what happened from 6 pm to very late in night. Prosecutrix (name withheld) aged 10 years did not ask for any food from 6 Pm to very late at night. Did they had dinner - snacks during such time is not explained. If they went out for food, PW2 prosecutrix (name withheld) could have escaped & gone back home from there. This is how one can clearly trace that PW2 prosecutrix (name withheld) was a tutored witness at the instance of PW4 Smt. Krishna who had sold mother of PW2 prosecutrix (name withheld) on same day at 11 am as reflected from the connected case. Thus, PW4 Smt. Krishna is an unreliable witness. She performed marriage or her son Roop Singh with Bala aged 12 years illegally, Then Mother of accused Deepak left away his father Mr. Dina Nath & PW4 Smt. Krishna started living with Sh. Dina Nath. Then, her 53 of 202 54 FIR No. 50/10 PS - Jahangir Puri son Roop Singh abandoned his wife Smt. Bala & 2 years later, PW4 Smt. Krishna illegally married Smt. Bala with the accused Deepak while 1st husband of Mrs. Bala was alive. Even, Deepak's 1st wife abandoned him & PW4 Smt. Krishna married Deepak Again during subsistence of his 1st Marriage illegally. Tested on the touchstone of aforesaid legal premises, perversity of approach of PW4 Smt. Krishna as regards the accused Deepak can be seen at the very outset. Learned Counsel further submitted that two material witnesses, namely Mrs. Bala @ Rekha & Mr. Mahinder had been knowingly withheld by the prosecution in this case, from the court. Learned Counsel further submitted that the statements of the above two witnesses under Section 161, cannot be considered at all benefiting the prosecution. The dropping off the witness namely Bala is for the reason that she has turned hostile in the case (FIR NO. 63 of 2010). Learned Counsel submitted that the prosecution has failed to prove its case beyond reasonable doubts and prayed for the acquittal of the accused on all the charges levelled against him.
8. While the Learned Addl. PP for the State, on the other hand, submitted that the testimonies of the prosecution witnesses are cogent 54 of 202 55 FIR No. 50/10 PS - Jahangir Puri and consistent and the contradictions and discrepancies as pointed out are minor and not the material one's and do not affect the credibility of the witnesses and the prosecution has proved its case beyond reasonable doubt.
9. I have heard Shri Ashok Kumar, Learned Addl. PP for the State and Sh. Siddarth Tyagi, Learned Counsel for the accused and have also carefully perused the entire record.
10. The charge for the offences punishable u/s 363/342/376(2)
(f)/323/506 IPC against the accused Deepak @ Deep Chand is that on 05/02/2010, near about 6:00 p.m., he enticed one minor girl/prosecutrix (name withheld), aged about 10 years, out of keeping of lawful guardianship without the consent of such guardian and that on the aforesaid date, after kidnapping, he wrongfully confined prosecutrix in House No. 1144, Gali No. 2, Khadda Colony, Swaroop Nagar, Delhi (House of Mahender) and that on the above date and place, at about 10 p.m. he committed rape on prosecutrix, female child, aged about 10 55 of 202 56 FIR No. 50/10 PS - Jahangir Puri years, without her consent and that on the above date, time and place, he also voluntarily caused hurt to prosecutrix with kicks and fist blows and that on the abovesaid date, time and place he also criminally intimidated said prosecutrix to kill her in case she reported the matter to Police.
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. PW18 Ms. Saroj Bala, Principal, M. C. Primary School, Jahangir Puri has deposed that she has brought the summoned record. As per their record, one child prosecutrix (name withheld) D/o Sh. Roop Singh & Smt. Rekha was admitted in their school on 28/04/2005 vide Admission No. 5230 in class 1st. As per their record her date of Birth is 23/03/2000. The copy of the relevant entry encircled in red of the 56 of 202 57 FIR No. 50/10 PS - Jahangir Puri Admission Register is Ex. PW18/A, copy of Admission Form is Ex. PW18/B and copy of the Shapath Patra (Affidavit) executed by Rekha, mother of the child Ex. PW18/C (OSR).
Despite grant of opportunity, PW18 Ms. Saroj Bala was not crossexamined on behalf of the accused. Nor any evidence to the contrary has been produced or proved on the record on behalf of the accused.
In the circumstances, it stands established on the record that the date of the birth of PW2 - prosecutrix is 23/03/2000.
As the date of alleged incident is 05/02/2010 and the date of birth of prosecutrix is 23/03/2000, on simple arithmetical calculation, the age of prosecutrix comes to 09 years, 10 months and 12 days as on the date of incident on 05/02/2010.
In view of above and in the circumstances, it stands established on record that PW2 prosecutrix was aged 09 years, 10 57 of 202 58 FIR No. 50/10 PS - Jahangir Puri months and 12 days as on the date of alleged incident on 05/02/2010.
In case "Jarnail Singh Vs. State of Haryana", 2013 VII AD (S.C.) 313 in para 20, the Hon'ble Supreme Court has held that, it would be just and appropriate to apply Rule 12 of Juvenile Justice (Care and Protection of Children) Rules, 2007 to determine the age of the prosecutrix.
In the instant case, since the date of birth certificate from the School (Other than a Play School), first attended by PW2 - prosecutrix, as provided under Rule 12 (3)(a)(ii) is available, therefore, the same is adopted as the highest rated first available basis in terms of the scheme of options under clause (a) of Rule 12 (3) of Juvenile Justice (Care and Protection of Children) Rules, 2007.
It is pertinent to reproduce para 20 of Jarnail Singh's case (Supra) of the Hon'ble Supreme Court which reads as under : "On the issue of determination of age of a minor, one only needs to make a reference to Rule 12 of the Juvenile Justice (Care and Protection of Children) Rules, 2007 (hereinafter referred to as the 2007 58 of 202 59 FIR No. 50/10 PS - Jahangir Puri Rules). The aforestated 2007 Rules have been framed under Section 68(1) of the Juvenile Justice (Care and Protection of Children) Rules, 2000. Rule 12 referred to hereinabove reads as under : "12. Procedure to be followed in determination of Age.? (1) In every conflict with law, the Court or the Board or as the case may be the Committee referred to in rule 19 of these rules shall determine the age of such juvenile or child or a juvenile in conflict with law within a period of thirty days from the date of making of the application for that purpose.
(2) The Court or the Board or as the case may be the Committee shall decide the juvenility or otherwise of the juvenile or the child or as the case may be the juvenile in conflict with law, prima facie on the basis of physical appearance or documents, if available, and send him to the observation home or in jail.
(3) In every case concerning a child or juvenile in conflict with law, the age determination inquiry shall be conducted by the Court or the Board or, as the case may be, the Committee by seeking evidence by obtaining
(a) (i) the matriculation or equivalent certificates, if available; and in the absence whereof;
(ii) the date of birth certificate from the school (other than a play school) first attended; and in the absence whereof;
(iii) the birth certificate given by a corporation or a municipal authority or a panchayat;
(b) and only in the absence of either (i), (ii) or (iii) of clause (a) above, the medical opinion will be sought from a duly constituted Medical Board,which will declare the age of the juvenile or child. In case exact assessment of the age cannot be done, the Court or the Board or, as the case may be, the Committee, for the reasons to be recorded by them, 59 of 202 60 FIR No. 50/10 PS - Jahangir Puri may, if considered necessary, give benefit to the child or juvenile by considering his/her age on lower side within the margin of one year.
and, while passing orders in such case shall, after taking into consideration such evidence as may be available, or the medical opinion, as the case may be, record a finding in respect of his age and either of the evidence specified in any of the clauses (a) (i), (ii), (iii) or in the absence whereof, clause (b) shall be the conclusive proof of the age as regards such child or the juvenile in conflict with law. (4) If the age of a juvenile or child or the juvenile in conflict with law is found to be below 18 years on the date of offence, on the basis of any of the conclusive proof specified in subrule (3), the Court or the Board or as the case may be the Committee shall in writing pass an order stating the age and declaring the status of juvenility or otherwise, for the purpose of the Act and these rules a copy of the order shall be given to such juvenile or the person concerned.
(5) Save and except where, further inquiry or otherwise is required, inter alia, in terms of section 7A, section 64 of the Act and these rules, no further inquiry shall be conducted by the Court or the Board after examining and obtaining the certificate or any other documentary proof referred to in sub rule (3) of this rule.
(6) The provisions contained in this rule shall also apply to those disposed off cases, where the status of juvenility has not been determined in accordance with the provisions contained in subrule (3) and the Act, requiring dispensation of the sentence under the Act for passing appropriate order in the interest of the juvenile in conflict with law."
60 of 202 61 FIR No. 50/10 PS - Jahangir Puri Even though Rule 12 is strictly applicable only to determine the age of a child in conflict with law, we are of the view that the aforesaid statutory provision should be the basis for determining age, even for a child who is a victim of crime. For, in our view, there is hardly any difference in so far as the issue of minority is concerned, between a child in conflict with law, and a child who is a victim of crime. Therefore, in out considered opinion, it would be just and appropriate to apply Rule 12 of the 2007 Rules, to determine the age of the prosecutrix VWPW6. The manner of determining age conclusively, has been expressed in subrule (3) of Rule 12 extracted above. Under the aforesaid provision, the age of a child is ascertained, by adopting the first available basis, out of a number of options postulated in Rule 12(3). If, in the scheme of options under Rule 12(3), an option is expressed in a preceding clause, it has overriding effect over an option expressed in a subsequent clause. The highest rated option available, would conclusively determine the age of a minor. In the scheme of Rule 12(3), matriculation (or equivalent) certificate of the concerned child, is the highest rated option. In case, the said certificate is available, no other evidence can be relied upon. Only in the absence of the said certificate, Rule 12(3), envisages consideration of the date of birth entered, in the school first attended by the child. In case such an entry of date is available, the date of birth depicted therein is liable to be treated as final and conclusive, and no other material is to be relied upon. Only in the absence of such entry, Rule 12(3) postulates reliance on a birth certificate issued by a corporation or a municipal authority or a panchayat. Yet again, if such a certificate is available, then no other material whatsoever is to be taken into consideration, for determining the age of the child concerned, as the said certificate would conclusively 61 of 202 62 FIR No. 50/10 PS - Jahangir Puri determine the age of the child. It is only in the absence of any of the aforesaid, that Rule 12(3) postulates the determination of age of the concerned child, on the basis of medical opinion." MEDICAL EVIDENCE OF THE PROSECUTRIX
13. PW3 Dr. Sumitra, SR, Gynaecology, BJRM Hospital has deposed that she has been deputed by the MS, BJRM Hospital to depose in the present case on behalf of Dr. Mamta who had proceeded on maternity leave. She has seen the MLC of prosecutrix (name withheld) D/o Roop Singh, aged about 10 years R/o Jhuggi No. 555, H2 Block, Jahangir Puri, Delhi. The prosecutrix was examined by Dr. Mamta in the Gynaecology Department. Initially, internal medical examination of the prosecutrix could not be done as there was nobody from her family to give consent and patient was minor. The endorsement given by Dr. Mamta in this regard is at point 'X' on MLC Ex. PW3/A upon which she (PW3) identify signature of Dr. Mamta at point 'A'. On the same day, patient was again brought for her medical examination around 9:00 a.m. by the Police accompanied by her grandmother. After taking consent 62 of 202 63 FIR No. 50/10 PS - Jahangir Puri from the grandmother, the internal medical examination of prosecutrix was conducted by Dr. Mamta. The patient was brought for her medical examination with alleged history of sexual assault. On examination, patient was conscious and alert. General condition was fair, pulse 86 bits per minute, pallor moderate. After assault, patient took bath and changed her clothes. On local examination, no sign of external injury over breast, mouth, lip and abdomen. Pubic hair not developed, libia majora and minora normal, hymen torn, bruising present, no fresh bleeding, patient was not cooperative for examination and her sample collection. Gently cervical mucus sample taken. Vaginal washing was taken and blood sample and oral swab taken and sent for examination. The marginal notes given by Dr. Mamta on Ex. PW3/A is at point 'Y' which bears her signatures at point 'B'.
Despite grant of opportunity, PW3 Dr. Sumitra was not crossexamined on behalf of the accused.
PW17 Dr. Gopal Krishna, MO, BJRM Hospital has deposed that he has been deputed in this case by the MS of the Hospital to depose before the Court. He has seen MLC No. 5733 of prosecutrix 63 of 202 64 FIR No. 50/10 PS - Jahangir Puri (name withheld) D/o Roop Singh aged 10 years, female who was brought to Hospital for medical examination with alleged history of sexual assault. The patient was examined by Dr. Devinder, J.R., under the supervision of Dr. Rajesh Satija, CMO and thereafter, she was referred to S.R. Gynae. At present Dr. Devinder and Dr. Rajesh Satija are not working in their Hospital and their present whereabouts are not known. He is acquainted with their handwriting and signatures as he has seen them while writing and signing during the course of his duties. The MLC prepared by Dr. Devinder is Ex. PW17/A, bearing signature of Dr. Devinder at point 'A' and signature of Dr. Rajesh Satija who was the CMO on that day is at point 'B'.
There is nothing in the crossexamination of PW17 Dr. Gopal Krishna so as to impeach his creditworthiness.
In view of above and in the circumstances, the medical and the gynaecological examination vide MLC Ex. PW17/A and vide endorsement at point 'X' on the MLC Ex. PW3/A and vide marginal notes at point 'Y' on the MLC Ex. PW3/A of PW2 - prosecutrix stands proved on the record.
64 of 202 65 FIR No. 50/10 PS - Jahangir Puri VIRILITY OF THE ACCUSED DEEPAK @ DEEP CHAND
14. PW17 Dr. Gopal Krishna, MO, BJRM Hospital has deposed that he has been deputed in this case by the MS of the Hospital to depose before the Court. He has seen MLC No. 5737 of Deepak @ Deep Chand S/o Deena Nath aged 28 years, male who was brought to Hospital for medical examination with alleged history of committing sexual assault. The patient was examined by Dr. Danish, J.R., under the supervision of Dr. Ajay, CMO and thereafter, she was referred to S.R. Surgery whereupon he was examined by Dr. Vinayak. As per MLC Dr. Vinayak opined that there is nothing to suggest that he is not capable of performing sexual intercourse. At present, Dr. Danish, Dr. Ajay and Dr. Vinayak are not working in their Hospital and their present whereabouts are not known. He is acquainted with their handwriting and signatures as he has seen them while writing and signing during the course of his duties. The MLC is Ex. PW17/B bearing signature of Dr. Danish at point 'A', signature of Dr. Ajay at point 'B' who was the CMO on that day and signature of Dr. Vinayak at point 'C'.
There is nothing in the crossexamination of PW17 Dr. 65 of 202 66 FIR No. 50/10 PS - Jahangir Puri Gopal Krishna so as to impeach his creditworthiness.
In view of above and in the circumstances, it stands proved on the record that accused Deepak @ Deep Chand was capable of performing sexual intercourse.
BIOLOGICAL AND SEROLOGICAL EVIDENCE
15. PW19 - Ms. L. Babyto Devi, Sr. Scientific Officer, FSL, Rohini, Delhi has proved the biological and serological reports Ex. PW19/A and Ex. PW19/B respectively bearing her signatures at point 'A'.
As per biological report Ex. PW19/A the description of articles contained in parcel and result of analysis reads as under : DESCRIPTION OF ARTICLES CONTAINED IN PARCEL Parcel '1' : One sealed cardboard box sealed with the seal of "BJRMH J. PURI DELHI" containing exhibits '1A', '1B', '1C(a)', '1C(b)', '1C(c)', '1D(a)', '1D(b)', '1E(a)' and '1E(b)'. Exhibit '1A' : Cotton wool swab on a wooden stick 66 of 202 67 FIR No. 50/10 PS - Jahangir Puri labelled as 'Step 9 Cervical mucus collection'. Exhibit '1B' : Dirty liquid kept in an injection syringe labelled as 'Step 11 Washing from vagina'.
Exhibit '1C(a)' : Cotton wool swab on a wooden stick labelled as 'Step 13 Oral swab'.
Exhibit '1C(b)' : Two microslides havign faint smear labelled as & '1C(c)' 'Step 13 Oral swab'. Exhibit '1D(a)' : One vial having dark brown foul smelling
liquid labelled as 'Step 14 Blood collection of victim'.
Exhibit '1D(b)' : One vial having dark brown foul smelling liquid 'Step 14 Blood collection of victim'.
Exhibit '1E(a)' : Dark brown foul smelling liquid labelled as 'Step 15 Urine & Oxalate blood vial'.
Exhibit '1E(b)' : Dark orangish yellow foul smelling liquid labelled as 'Step 15 Urine & Oxalate blood vial.
Parcel '3' : One sealed cloth parcel sealed with the seal of "MS BJRMH J. PURI DELHI" containing exhibit '3'.
Exhibit '3' : One underwear. Parcel '4' : One sealed cloth parcel sealed with the seal of
"MS BJRMH J. PURI DELHI" containing exhibit '4'. Exhibit '4' : Dark brown foul smelling liquid described as 'Blood sample of accused'.
RESULT OF ANALYSIS 67 of 202 68 FIR No. 50/10 PS - Jahangir Puri
1. Semen could not be detected on exhibits '1A', '1B', '1C(a)', '1C(b)', '1C(c)' and '1E(b)'.
2. Human semen was detected on exhibit '3'.
3. Blood was detected on exhibits '1D(a)', '1D(b)', 1E(a)' and '4'.
4. Report of serological analysis in original is attached herewith. NOTE : Remnants of the exhibits have been sealed with the seal of 'BD FSL DELHI'.
The serological report Ex. 19/B reads as under: Exhibits Species of origin ABO Grouping/Remarks '1D(a)' Blood sample Sample was putrefied hence no opinion '1D(b)' Blood sample Sample was putrefied hence no opinion '1E(a)' Blood sample Sample was putrefied hence no opinion '4' Blood sample Sample was putrefied hence no opinion Semen stains:
'3' Underwear No reaction As per the biological report Ex. PW19/A, 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. PW12/A dated 08/02/2010 and parcel nos. 3 & 4 belong to the accused Deepak @ Deep Chand which were seized vide seizure 68 of 202 69 FIR No. 50/10 PS - Jahangir Puri memo Ex. PW16/A dated 08/02/2010.
On careful perusal and analysis of the biological and serological evidence on record, it clearly shows that blood was detected on exhibit '1D(a)' (Blood collection of the prosecutrix), exhibit '1D(b)' (Blood collection of the prosecutrix), exhibit 1E(a)' (Urine & Oxalate blood vial of the prosecutrix) and exhibit '4' (Blood sample of accused Deepak @ Deep Chand); Human semen was detected on exhibit '3' (Underwear of the accused Deepak @ Deep Chand) and semen could not be detected on exhibit '1A' (Cervical mucus collection of the prosecutrix), exhibit '1B' (Washing from vagina of the prosecutrix), exhibit '1C(a)' (Oral swab of the prosecutrix), exhibit '1C(b)' (Oral swab of the prosecutrix), exhibit '1C(c)' (Oral swab of the prosecutrix) and exhibit '1E(b)' (Urine and Oxalate blood vial of the prosecutrix). As per the serological report Ex. PW19/B 'Sample was putrefied hence no opinion' could be given on the exhibit '1D(a)' (Blood Sample of the prosecutrix), exhibit '1D(b)' (Blood Sample of the prosecutrix), exhibit '1E(a)' (Blood Sample of the prosecutrix) and exhibit '4' (Blood Sample of accused Deepak @ Deep Chand).
69 of 202 70 FIR No. 50/10 PS - Jahangir Puri On a conjoint reading of the medical and the gynaecological examination vide MLC Ex. PW17/A, vide endorsement at point 'X' on the MLC Ex. PW3/A and vide marginal notes at point 'Y' on the MLC Ex. PW3/A of PW2 - prosecutrix together with the MLC of accused Deepak @ Deep Chand Ex. PW17/B in the light of the biological and serological evidence detailed hereinabove, it clearly indicates the taking place of sexual intercourse activity.
In the circumstances, it stands clearly established on the record that sexual intercourse activity has taken place in the instant case.
As per the biological report Ex. PW19/A, prosecution has discharged its initial burden of proving the presence of Human semen on exhibit '3' (underwear of the accused Deepak @ Deep Chand seized vide seizure memo Ex. PW16/A dated 08/02/2010). Accused was under an obligation to explain how and under what circumstances, the Human semen came to be present on the said exhibit '3' as detailed hereinabove. The absence of such an 70 of 202 71 FIR No. 50/10 PS - Jahangir Puri explanation both in the section 313 Cr.P.C. statement of the accused Deepak @ Deep Chand and his omission to lead any evidence in this regard and his complete denial becomes an additional link in the prosecution case.
It is also to be noticed that the date of the alleged incident is 05/02/2010 and the (internal) medical examination of PW2 - prosecutrix was conducted on 08/02/2010 at 09:00 AM vide marginal notes at point 'Y' on the MLC Ex. PW3/A and the exhibits contained in parcel no. 1 as detailed hereinabove of the prosecutrix were collected on 08/02/2010 at 10:00 AM by the Doctor and were seized by the Police vide seizure memo Ex. PW16/A, dated 08/02/2010. From the marginal notes at point 'Y' on the MLC Ex. PW3/A it is interalia clearly indicated that, "After assault, patient took bath and changed her clothes" and also that during this period from the date of incident on 05/02/2010 till 08/02/2010, when her (internal) medical examination was conducted and the exhibits were seized, it cannot be ruled out that prosecutrix must have answered 71 of 202 72 FIR No. 50/10 PS - Jahangir Puri the call of nature a number of times, must have urinated a number of times and for the said reason, it appears that semen could not be detected on exhibits '1A', '1B', '1C(a)', '1C(b)', '1C(c)' and '1E(b)' as detailed hereinabove, of the prosecutrix.
LAW RELATING TO THE EVIDENCE OF CHILD WITNESS
16. In case Amrit Sharma @ Amit Vs. State, 2012 IX AD (DELHI) 149 (DB), the Hon'ble Delhi High Court in para 14 has held that : ".....Under Section 118 Evidence Act, no specific age has been prescribed and a child of any age can be a competent witness. Under Section 119 Evidence Act, even a deaf and dumb can be a competent witness. There is no fixed age on which a child must have arrived in order to be competent as a witness. Competency is determined at the time the child testifies rather than at the time the incident occurred."
Section 118 of the Indian Evidence Act, 1872 provides who may testify.
It reads as under :
118. Who may testify. All persons shall be competent to 72 of 202 73 FIR No. 50/10 PS - Jahangir Puri testify unless the Court considers that they are prevented from understanding the questions put to them, or from giving rational answers to those questions, by tender years, extreme old age, disease, whether of body or mind, or any other cause of the same kind.
Explanation. A lunatic is not incompetent to testify, unless he is prevented by his lunacy from understanding the questions put to him and giving rational answers to them.
In case Bindu Vs. State (NCT) of Delhi 2009 VIII AD (DELHI), the Hon'ble Delhi High Court has held as under : "As per the provisions of Section 118 of the Evidence Act all the persons are competent to testify, unless the Court consider that by reason of tender years they are incapable of understanding the questions put to them and of giving rational answers but then it is for the Judge to satisfy himself as regards fulfillment of the requirement of the said provision. A child of tender age can be allowed to testify if he has intellectual capacity to understand questions and give rational answers thereto. The evidence of a child witness cannot be rejected per se, but the Court as a rule of prudence is required to consider such evidence with close scrutiny and if it is convinced about the quality thereto and the reliability of the child witness can record conviction based on his testimony. If after careful scrutiny of child witness's statement the Court comes to the conclusion that there is impressed of truth in it. There is no reason as to why the Court should not accept the evidence of child witness."
73 of 202 74 FIR No. 50/10 PS - Jahangir Puri In State of U.P. Vs. Krishna Master and others 2010 VIII AD (S.C.) 401 = AIR 2010 SC 3071 = (2010) 12 SCC 324, the Hon'ble Supreme Court held : "There is no principle of law known to this Court that it is inconceivable that a child of tender age would not be able to recapitulate the facts in his memory witnessed by him long ago. A child of tender age is always receptive to abnormal events which take place in his life and would never forget those events for the rest of his life. The child would be able to recapitulate correctly and exactly when asked about the same in the future. In case the child explains the relevant events of the crime without improvements or embellishments, and the same inspire confidence of the Court, his deposition does not require any corroboration whatsoever. The child at a tender age is incapable of having any malice or ill will against any person. Therefore, there must be something on record to satisfy the Court that something had gone wrong between the date of incident and recording evidence of the child witness due to which the witness wanted to implicate the accused falsely in a case of a serious nature."
In "Nivrutti Pandurang Kokate Vs. State of Maharashtra" AIR 2008 SC 1460, the Hon'ble Supreme Court dealing with the child witness has observed as under : (SCC pp. 56768, para
10) 74 of 202 75 FIR No. 50/10 PS - Jahangir Puri "10. ... 7. ... The decision on the question whether the child witness has sufficient intelligence primarily rests with the trial judge who notices his manners, his apparent possession or lack of intelligence, and the said judge may resort to any examination which will tend to disclose his capacity and intelligence as well as his understanding of the obligation of an oath. The decision of the trial court may, however, be disturbed by the higher court if from what is preserved in the records, it is clear that his conclusion was erroneous. This precaution is necessary because child witnesses are amenable to tutoring and often live in a world of makebelieve. Though it is an established principle that child witnesses are dangerous witnesses as they are pliable and liable to be influenced easily, shaped and moulded, but it is also an accepted norm that if after careful scrutiny of their evidence the Court comes to the conclusion that there is an impress of truth in it, there is no obstacle in the way of accepting the evidence of a child witness"
In "State of H.P. Vs. Suresh Kumar @ DC" 2010 I AD (S.C.) 573 = (2009) 8 SCALE 628, the prosecutrix was 56 years old. The accused therein was resident of the same village. The observations of the Hon'ble Supreme Court in paragraphs 12 & 13 are relevant to note: "12. There is another vital submission made by the respondentaccused which is required to be dealt with at this stage. It was submitted that both the child witnesses, namely, PW3 and PW4, the 75 of 202 76 FIR No. 50/10 PS - Jahangir Puri prosecutrix and her sister respectively, should not and could not have been believed due to the following two reasons. Firstly, both PW3 as well as PW4 was child at the time of commission of the said offence and secondly, they were tutored by their parents and Police.
13. We have considered the said submission, but we find the same to be unacceptable. The depositions of these two witnesses, i.e. PW3 & PW4 with regard to the occurrence of such incidence are firm and convincing. We find no reason as to why a child of her age i.e. prosecutrix would get an innocent person named for an offence which was undisputable committed on her. It is settled position of law that the conviction for offence under Section 376 on the sole testimony of a rape victim if the evidence of the prosecutrix is found to be credible and convincing." This Court observed as follows in the case 'State of Rajasthan Vs. MANU/SC/0416/2002 : Om Prakash 2002 CriLJ2951':
13. The conviction for offence under Section 376 IPC can be based on the sole testimony of a rape victim is a wellsettled proposition. In 'State of Punjab Vs. Gurmit Singh', MANU/SC/0138/1997, referring to 'State of Maharashtra Vs. Chandraprakash Kewalchand Jain', MANU/SC/0122/1990, this Court held that it must not be overlooked that a woman or a girl subjected to sexual assault is not an accomplice to the crime but is a victim of another person's lust and it is improper and undesirable to test her evidence with a certain amount of suspicion, treating her as if she were an accomplice.
It has also been observed in the said decision by Dr. Justice A. S. Anand (as His Lordship then was), speaking for the Court that the inherent bashfulness of the females and the tendency to conceal outrage of sexual aggression are factors which the Courts should not overlook. The 76 of 202 77 FIR No. 50/10 PS - Jahangir Puri testimony of the victim, in such cases is vital and unless there are compelling reasons which necessitate looking for corroboration of her statement, the Courts should find no difficulty to act on the testimony of a victim of sexual assault alone to convict an accused where her testimony inspires confidence and is found to be reliable. Seeking corroboration of her statement before relying upon the same, as a rule, in such cases amounts to adding insult to injury."
17. Now let the testimony of PW2 - Prosecutrix be perused and analysed.
The statement of PW2 Prosecutrix was recorded after putting a number of preliminary questions to her by the Learned Predecessor court and after being satisfied about her competency and that she is giving rational replies and is in a position to give the statement voluntarily and keeping in view her tender age oath was not administered to her.
PW2 Prosecutrix, in her examinationinchief has deposed which is reproduced and reads as under : "Accused now present in Court (correctly identified) is my Chacha. On 05/02/2010, he was standing at Sai Baba Mandir at CBlock, Jahangir Puri. I was peeling off cholia outside my house. Accused 77 of 202 78 FIR No. 50/10 PS - Jahangir Puri called me to the Mandir. I went to the Mandir as asked by the accused. From there, accused took me to a room in Swaroop Nagar. I requested accused to leave me at my house as it was night time but accused refused. Accused closed the door of the room and removed my underwear. He also removed his underwear. Then he lied down over me. Thereafter, he put his urinating organ in my urinating part. When I felt pain and cried, he pressed my mouth with his hand. Thereafter, accused asked me to hold his penis and shake the same. Accused had also slapped me and kept me in the room the whole night. In the morning, accused made me sit alone in a Jahangir Puri bus and asked the driver to drop me at 100 number bus stand. When I got down at 100 number bus stand, my grandmother and Amrita Didi met me. I narrated the episode to my grandmother and Amrita Didi. My grandmother telephoned the Police. Police came at our house. Police caught the accused from Swaroop Nagar. I had earlier also come to Court and gave the statement.
At this stage, a sealed envelope bearing the seal of 'SK' is opened and statement u/s 164 Cr.P.C. of the witness is brought out and shown to the witness. She identifies her signature at point 'A' on the statement Ex. PW2/A. I was also taken to the Hospital and examined by the Doctor."
From the aforesaid narration of PW2 - prosecutrix, it is clear that on 05/02/2010, accused was standing at Sai Baba Mandir at C Block, Jahangir Puri. She was peeling off cholia outside her house. Accused called her to the Mandir. She went to the Mandir as asked by the accused. From there, accused took her to a room in Swaroop Nagar.
78 of 202 79 FIR No. 50/10 PS - Jahangir Puri She requested accused to leave her at her house as it was night time but accused refused. Accused closed the door of the room and removed her underwear. He also removed his underwear. Then he lied down over her. Thereafter, he put his urinating organ in her urinating part. When she felt pain and cried, he pressed her mouth with his hand. Thereafter, accused asked her to hold his penis and shake the same. Accused had also slapped her and kept her in the room the whole night. In the morning, accused made her sit alone in a Jahangir Puri bus and asked the driver to drop her at 100 number bus stand. When she got down at 100 number bus stand, her grandmother and Amrita Didi met her. She narrated the episode to her grandmother and Amrita Didi. Her grandmother telephoned the Police. Police came at their house. Police caught the accused from Swaroop Nagar. She had earlier also come to Court and gave the statement. She identifies her signature at point 'A' on the statement u/s 164 Cr.P.C. Ex. PW2/A and she was also taken to the Hospital and examined by the Doctor.
During her crossexamination by the Learned Counsel for the accused PW2 - Prosecutrix has negated the suggestions that no 79 of 202 80 FIR No. 50/10 PS - Jahangir Puri "galat kaam" was committed upon her or that her Dadi Krishna lodged a false complaint against her father to level a score against him or that her father never inserted his urinating part in her urinating part or that she is making the statement at the instance of her Dadi.
Inspite of incisive crossexamination of PW2 - 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 PW2 - Prosecutrix on careful perusal and analysis is found to be clear, natural, cogent, convincing, trustworthy and inspiring confidence. The version of this witness on the core spectrum of the crime has remained intact. There is nothing in her statement to suggest that she had any animus against the accused to falsely implicate him in the case.
The testimony of PW2 - Prosecutrix is also found to be corroborated by the medical evidence as well as the biological and serological evidence as discussed hereinbefore.
80 of 202 81 FIR No. 50/10 PS - Jahangir Puri The testimony of PW2 - Prosecutrix is also found to be in consonance with her statement recorded u/s 164 Cr.P.C. Ex. PW2/A bearing her signature at point 'A'.
The testimony of PW2 - Prosecutrix is also found to be corroborated by PW4 - Smt. Krishna, her grandmother and PW6 - Amrita (of whom prosecutrix is cousin) to whom prosecutrix disclosed the facts relating to the crime shortly after the incident, at the first available opportunity being relevant u/s 6 & 8 of the Indian Evidence Act, 1872.
PW4 - Smt. Krishna is the grand mother of the prosecutrix, who in her examinationinchief has deposed that : "I have three sons and a daughter. All are married. My elder son Roop Singh had got married with Bala. He has three sons and two daughters. Roop Singh became mentally imbalanced and left the house about four years ago and did not return back. Accused Deepak @ Deep Chand, now present in Court, is the son of my Dever Dina Nath. Since my son Roop Singh had left the house, I married my daughterin law Bala with accused Deepak @ Deep Chand. Bala and her children 81 of 202 82 FIR No. 50/10 PS - Jahangir Puri started residing with accused Deep Chand. On 04/02/2010, Bala had gone to her parents house because of death of her brother. I am doing the work of part time maid in kothis. On 05/02/2010, at about 8:00 a.m., I left the house for work and in the evening at 6:00 p.m. when I returned back, prosecutrix (name withheld) daughter of Roop Singh, then aged about ten years, was not at home. The other children of Roop Singh told me that prosecutrix (name withheld) was taken by Papa Deep Chand. They did not know where was prosecutrix (name withheld) taken by the accused. I kept searching for prosecutrix (name withheld) on 05/02/2010 and 06/02/2010.
On 06/02/2010, at about 8:00 a.m., I received a phone call from accused saying that there was nothing to worry and that he was bringing prosecutrix (name withheld) and asked me to reach the bus stand of 100 number. I along with my grand daughter Amrita and son in law Nirmal reached at 100 number bus stand. After waiting for about half an hour, prosecutrix (name withheld) got down from a bus alone. She was not accompanied by accused Deep Chand. Her clothes were torn. I brought her to my house. She was very much affraid. Prosecutrix (name withheld) informed my grand daughter Amritaa that she was taken to a room by accused Deepak where he took liquor and raped her. She also told her that accused had slapped her and had also threatened that in case she told about the incident to anyone, he would kill her. I searched for accused Deep Chand on 06/02/2010 and 07/02/2010. I then went to the Police Station and gave the statement Ex. PW4/A which bears my thumb mark at point 'A'.
On 08/02/2010, accused was arrested by the Police on the identification of my grand daughter/prosecutrix (name withheld) vide arrest memo Ex. PW4/B which also bears my thumb mark at point 'A'. Police had got prosecutrix (name withheld) medically examined from 82 of 202 83 FIR No. 50/10 PS - Jahangir Puri BJRM Hospital."
From the aforesaid narration of PW4 - Smt. Krishna it is clear that the she is having three sons and a daughter. All are married. Her elder son Roop Singh had got married with Bala. He has three sons and two daughters. Roop Singh became mentally imbalanced and left the house about four years ago and did not return back. Accused Deepak @ Deep Chand, present in Court, is the son of her Dever Dina Nath. Since her son Roop Singh had left the house, she married her daughter inlaw Bala with accused Deepak @ Deep Chand. Bala and her children started residing with accused Deep Chand. On 04/02/2010, Bala had gone to her parents house because of death of her brother. She is doing the work of part time maid in kothis. On 05/02/2010, at about 8:00 a.m., she left the house for work and in the evening at 6:00 p.m. when she returned back, prosecutrix (name withheld) daughter of Roop Singh, then aged about ten years, was not at home. The other children of Roop Singh told her that prosecutrix (name withheld) was taken by Papa Deep Chand. They did not know where was prosecutrix (name withheld) taken by the accused. She kept searching for prosecutrix (name withheld) on 83 of 202 84 FIR No. 50/10 PS - Jahangir Puri 05/02/2010 and 06/02/2010. On 06/02/2010, at about 8:00 a.m., she received a phone call from accused saying that there was nothing to worry and that he was bringing prosecutrix (name withheld) and asked her (PW4) to reach the bus stand of 100 number. She along with her grand daughter Amrita and soninlaw Nirmal reached at 100 number bus stand. After waiting for about half an hour, prosecutrix (name withheld) got down from a bus alone. She was not accompanied by accused Deep Chand. Her clothes were torn. She (PW4) brought her (prosecutrix) to her house. She was very much affraid. Prosecutrix (name withheld) informed her grand daughter Amritaa that she was taken to a room by accused Deepak where he took liquor and raped her (prosecutrix). She also told her that accused had slapped her and had also threatened that in case she told about the incident to anyone, he would kill her (prosecutrix). She (PW4) searched for accused Deep Chand on 06/02/2010 and 07/02/2010. She then went to the Police Station and gave the statement Ex. PW4/A which bears her thumb mark at point 'A'. On 08/02/2010, accused was arrested by the Police on the identification of her grand daughter/prosecutrix (name withheld) vide arrest memo Ex. PW4/B which also bears her thumb mark at point 'A'.
84 of 202 85 FIR No. 50/10 PS - Jahangir Puri Police had got prosecutrix (name withheld) medically examined from BJRM Hospital.
During the leading question put by the Learned Addl. PP for the State, PW4 - Krishna has deposed that : "It is correct that on 07/02/2010, my son Bhoop Singh informed the Police at 100 number."
From above it is clear that on 07/02/2010, her son Bhoop Singh informed the Police at 100 number.
During her crossexamination by the Learned Counsel for the accused PW4 Smt. Krishna has negated the suggestions that she had falsely implicated the accused Deepak in the present case or that to level the score against accused, she has falsely implicated him in the present case or that no complaint was filed till early morning of 08/02/2010 as they were preparing the story to falsely implicate the accused persons or that no such incident took place or that she is deposing falsely.
85 of 202 86 FIR No. 50/10 PS - Jahangir Puri Inspite of incisive crossexamination of PW4 - Smt. Krishna, nothing material has been brought out so as to impeach her creditworthiness. She 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 (S.C.)1], the testimony of PW4 - Smt. Krishna is found to be natural, cogent, reliable, inspiring confidence and having a ring of truth. There is nothing in her statement to suggest that she had any animus against the accused to falsely implicate him in the case. She has deposed regarding the facts as to what she observed, experienced and perceived.
PW6 - Amrita (of whom prosecutrix is cousin), in her examinationinchief has deposed that : "Accused Deepak present in the Court today is my maternal uncle and the prosecutrix (name withheld) is my cousin. I do not remember the date, month and year. However, two years back, I received a call from accused that he would come with prosecutrix (name withheld) at 100 number bus stand, Adarsh Nagar. I alongwith my husband and my maternal grand mother reached there. Accused did not came there. However, prosecutrix (name withheld) came down from a 86 of 202 87 FIR No. 50/10 PS - Jahangir Puri bus at the said bus stand. She was perplexed. On seeing her alone, we got some suspicion. We took her to house and inquired the matter from her. She told that accused had beaten her and she narrated the entire facts to me and my maternal grandmother. Prosecutrix (name withheld) told that accused had committed sexual intercourse with her. Thereafter, prosecutrix (name withheld) was taken to PS - Jahangir Puri by my Chachi and grandmother. Police called me at PS and inquired the facts from me. I narrated all the facts which have been deposed to the Police. I do not remember my mobile number due to lapse of time."
From the aforesaid narration of PW6 - Amrita it is clear that the accused Deepak present in the Court today is her maternal uncle and the prosecutrix (name withheld) is her cousin. She does not remember the date, month and year. However, two years back, she received a call from accused that he would come with prosecutrix (name withheld) at 100 number bus stand, Adarsh Nagar. She (PW6) alongwith her husband and her maternal grand mother reached there. Accused did not came there. However, prosecutrix (name withheld) came down from a bus at the said bus stand. She was perplexed. On seeing her alone, they got some suspicion. They took her to house and inquired the matter from her (prosecutrix). She told that accused had beaten her and she narrated the entire facts to her (PW6) and my maternal grandmother.
87 of 202 88 FIR No. 50/10 PS - Jahangir Puri Prosecutrix (name withheld) told that accused had committed sexual intercourse with her. Thereafter, prosecutrix (name withheld) was taken to PS - Jahangir Puri by her Chachi and grandmother. Police called her at PS and inquired the facts from her. She narrated all the facts which have been deposed to the Police. She does not remember her mobile number due to lapse of time.
During her crossexamination by the Learned Addl. PP for the State, PW6 - Amrita has deposed that : "It is correct that on 05/02/2010 at about 2:30 p.m. when I returned from my work, Rachna, elder sister of prosecutrix (name withheld) told me that prosecutrix (name withheld) was taken by the accused while she was playing outside the house. It is correct that when my maternal grandmother Krishna made search for prosecutrix (name withheld) as she was not traceable, I came to know about her missing. It is correct that I received call from accused on my mobile number 987312369045 and informed me that prosecutrix (name withheld) is with him. It is correct that I had told the Police that accused threatened prosecutrix (name withheld) in case she raised an alarm, he would kill him (her) and also confined her in the room during night. (Objected to by defence counsel being hearsay)."
88 of 202 89 FIR No. 50/10 PS - Jahangir Puri From above it is clear that on 05/02/2010 at about 2:30 p.m. when she returned from her work, Rachna, elder sister of prosecutrix (name withheld) told her that prosecutrix (name withheld) was taken by the accused while she (prosecutrix) was playing outside the house and when her maternal grandmother Krishna made search for prosecutrix (name withheld) as she was not traceable, she (PW6) came to know about her (prosecutrix's) missing and that she received call from accused on her mobile number 987312369045 and informed her that prosecutrix (name withheld) is with him and that she had told the Police that accused threatened prosecutrix (name withheld) in case she raised an alarm, he would kill her and also confined her in the room during night.
Despite grant of opportunity, PW6 - Amrita was not crossexamined on behalf of accused.
On careful perusal and analysis and by applying the discerning scrutiny standard [Ref. Raju @ Balachandran & Ors. Vs. State of Tamil Nadu 2012 XII (S.C.)1], the testimony of PW6 - Amrita is found to be natural, cogent, reliable, inspiring confidence and having a 89 of 202 90 FIR No. 50/10 PS - Jahangir Puri ring of truth. There is nothing in her statement to suggest that she had any animus against the accused to falsely implicate him in the case. She has deposed regarding the facts as to what she observed, experienced and perceived.
19. While analysing the testimonies of PW2 - Prosecutrix and PW4 - Smt. Krishna, her grandmother as discussed hereinabove inspite of incisive crossexamination of PW2 - Prosecutrix and PW4 - Smt. Krishna, nothing has come out in their statements which may throw even a slightest doubt on the prosecution version of the incident. Despite grant of opportunity, PW6 - Amrita was not crossexamined on behalf of accused. Though the suggestions by the defence to PW2 Prosecutrix that no "galat kaam" was committed upon her or that her Dadi Krishna lodged a false complaint against her father to level a score against him or that her father never inserted his urinating part in her urinating part or that she is making the statement at the instance of her Dadi and the suggestions to PW4 - Smt. Krishna that she had falsely implicated the accused Deepak in the present case or that to level the score against accused, she has falsely implicated him in the present case 90 of 202 91 FIR No. 50/10 PS - Jahangir Puri or that no complaint was filed till early morning of 08/02/2010 as they were preparing the story to falsely implicate the accused persons or that no such incident took place or that she 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 has been falsely implicated because of animosity.
20. It is well settled that rape, is crime and not a medical condition. Rape is a legal term and not a diagnosis to be made by the medical officer treating the victim.
It is to be noticed that the opinion expressed by Modi in Medical jurisprudence and Toxicology (Twenty First Edition) at page 369 which reads as : "Thus to constitute the offence of rape it is not necessary that there should be complete penetration of penis with emission of semen and rupture of hymen. Partial penetration of the penis within the labia majora or the vulva or pudenda with or without emission of semen or even an attempt at penetration is quite possible to commit legally the 91 of 202 92 FIR No. 50/10 PS - Jahangir Puri offence of rape without producing any injury to the genitals or leaving any seminal stains. In such a case the medical officer should mention the negative facts in his report, but should not give his opinion that no rape had been committed. Rape, is crime and not a medical condition. Rape is a legal term and not a diagnosis to be made by the medical officer treating the victim. The only statement that can be made by the medical officer is that there is evidence of recent sexual activity. Whether the rape has occurred or not is a legal conclusion, not a medical one."
In Parikh's Textbook of Medical jurisprudence and Toxicology, the following passage is found:
"Sexual intercourse : In law, this term is held to mean the slightest degree of penetration of the vulva by the penis with or without emission of semen. It is therefore quite possible to commit legally the offence of rape without producing any injury to the genitals or leaving any seminal stains."
In Encyclopedia of Crime and Justice (Vol. 4) at page 1356, it is stated:
".....even slight penetration is sufficient and emission is unnecessary."
92 of 202 93 FIR No. 50/10 PS - Jahangir Puri On analysing the testimony of PW2 - Prosecutrix in the light of medical and gynaecological examination vide MLC Ex. PW17/A and vide endorsement at point 'X' on the MLC Ex. PW3/A and vide marginal notes at point 'Y' on the MLC Ex. PW3/A of PW2 - prosecutrix, the biological and serological evidence Ex. PW19/A and Ex. PW19/B together with the MLC of accused Deepak @ Deep Chand Ex. PW17/B, 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 of semen, 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 the accused Deepak @ Deep Chand with PW2 - Prosecutrix without her consent.
NOW LET THE SUBMISSIONS/PLEAS RAISED BY THE LEARNED DEFENCE COUNSEL BE ANALYSED AND 93 of 202 94 FIR No. 50/10 PS - Jahangir Puri APPRECIATED
21. Learned Counsel for the accused submitted that prosecution case is that on 07.02.2010 at about 10.17 p.m., one Mr. Bhoop Singh claims to have reported from his mobile phone to PCR at Tel. No. 100 that a rape has been committed on a lady at H2, Shah Alam Band in Jahangir puri near Sai Baba Mandir. It was so recorded on 07.02.2010 at about 10:17 p.m. by PW7 L/ Constable Bala Sharma who recorded it as Ex. PW7/A & who deposed that she received such call from Cell No. 9873123690 whereupon she informed so to Jahangirpuri at 10.20 p.m. where PW5 HC Hitender received that message and recorded DD No. 25A (Ex. PW5/A). He further submitted that as per prosecution, Rape was on a lady and not a 10 year old minor girl; no one told that alleged rape took place on 05.02.2010; no one said that Deepak had done the alleged rape; no one said PW2 prosecutrix (name withheld) was the victim of alleged rape; no one said that PW2 prosecutrix (name withheld) was kidnapped; no one said PW2 prosecutrix (name withheld) was kept in a locked room. He further submitted that as per prosecution & as per First Informer of information, Place of occurrence/rape was H2, Shah Alam Band in Jahangirpuri near Sai Baba Mandir & not at H. 94 of 202 95 FIR No. 50/10 PS - Jahangir Puri No. 1144, Gali No. 2, Khadda Colony. He further submitted that as per prosecution & as per First Informer of information, no time of occurrence was disclosed. He further submitted that it was not reported that alleged kidnapping & rape was made on 05.02.2010 or that a minor girl aged 10 years was raped or that rape was made at a place other than H2, Shah Alam Band in Jahangir Puri near Sai Baba Mandir.
I have carefully perused and analysed the evidence on record.
It is a settled principle that statements of the witnesses have to be read as a whole and not in a manner to pick up a sentence in isolation from the entire statement and ignoring its proper reference.
The testimony of PW2 - Prosecutrix has been reproduced, discussed and analysed hereinbefore. At the cost of repetition, the testimony of PW2 - Prosecutrix has been found to be clear, natural, 95 of 202 96 FIR No. 50/10 PS - Jahangir Puri cogent, convincing and inspiring confidence. There is nothing in her statement to suggest that she had any animus against the accused to falsely implicate him in the case.
So far as the plea raised by the Learned counsel for accused that, "The prosecution case is that on 07.02.2010 at about 10.17 p.m., one Mr. Bhoop Singh claims to have reported from his mobile phone to PCR at Tel. No. 100 that a rape has been committed on a lady at H2, Shah Alam Band in Jahangir puri near Sai Baba Mandir. It was so recorded on 07.02.2010 at about 10:17 p.m. by PW7 L/ Constable Bala Sharma who recorded it as Ex. PW7/A & who deposed that she received such call from Cell No. 9873123690 whereupon she informed so to Jahangirpuri at 10.20 p.m. where PW5 HC Hitender received that message and recorded DD No. 25A (Ex. PW5/A). So as per prosecution, Rape was on a lady and not a 10 year old minor girl; no one told that alleged rape took place on 05.02.2010; no one said that Deepak had done the alleged rape; no one said PW2 prosecutrix (name withheld) was the victim of alleged rape; no one said that PW2 prosecutrix (name withheld) was kidnapped; no one said PW2 96 of 202 97 FIR No. 50/10 PS - Jahangir Puri prosecutrix (name withheld) was kept in a locked room. As per prosecution & as per First Informer of information, Place of occurrence/rape was H2, Shah Alam Band in Jahangirpuri near Sai Baba Mandir & not at H. No. 1144, Gali No. 2, Khadda Colony. As per prosecution & as per First Informer of information, no time of occurrence was disclosed. It was not reported that alleged kidnapping & rape was made on 05.02.2010 or that a minor girl aged 10 years was raped or that rape was made at a place other than H2, Shah Alam Band in Jahangir Puri near Sai Baba Mandir" is concerned, the testimonies of PW15 - Bhoop Singh, PW5 - HC Hitender and PW7 - L/Constable Bala Sharma have been detailed and discussed hereinbefore.
At the cost of repetition PW15 - Bhoop Singh, who is the uncle (Chacha) of the prosecutrix, in his examinationinchief has deposed that on 07/02/2010, he came back to his house from his work at about 07:007:30 p.m. her mother Krishna Devi told him that accused Deepak @ Deep Chand who is the step father of his niece/prosecutrix (name withheld) has taken prosecutrix (name withheld) at Swaroop Nagar and committed rape upon her. Thereafter, he informed the Police 97 of 202 98 FIR No. 50/10 PS - Jahangir Puri on 100 Number, from his mobile Number. Police came there and Police has arrested the accused Deepak @ Deep Chand present in the Court.
PW5 HC Hitender, who is the Duty Officer in his examinationinchief has deposed that 07/02/2010, he was posted as HC at PS - Jahangir Puri. On that day, he was doing job of Duty Officer from 5:00 p.m. to 1:00 a.m. night. At around 10:20 p.m., he received an information from Wireless Operator of PS - Jahangir Puri regarding that a rape has been committed on a lady at H2 Block, Shah Alam Band, near Sai Baba Temple, Jahangir Puri. The said information was recorded vide DD No. 25A. True copy of the same is Ex. PW5/A (original seen and returned).
PW7 L/Constable Bala Sharma in her examinationinchief has deposed that on 07/02/2010, she was working at CPCR, PHQ, Delhi from 8:00 p.m. to 8:00 a.m. At about 22:16 hrs, she received a call from mobile No. 9873123690 regarding incident of rape with a lady at H2, Shah Alam Bandh, Jahangir Puri, near Sai Baba Mandir. The said information was recorded in PCR Form and thereafter, it was supplied to 98 of 202 99 FIR No. 50/10 PS - Jahangir Puri concerned department. The original PCR Form is Ex. PW7/A. Despite grant of opportunity the said PWs were not cross examined on behalf of the accused. The said PWs have deposed regarding the facts as to what they perceived, acted and performed. There is nothing in their statements to suggest that they had any animus against the accused to falsely implicate him in the case.
It is evident from the record that at the time of cross examination PW15 - Bhoop Singh, the said accused did not voice his concern or raised any apprehension on the aspects regarding which the plea has been raised, who was not crossexamined despite grant of opportunity. He was the only competent witness who would have been fully capable of explaining correctly the factual situation. For such failure accused is to blame himself and none else.
In case 'Mahavir Singh Vs. State of Haryana', (2014) 6 SCC 716, the Hon'ble Supreme Court has observed that it is settled legal proposition that in case the question is not put to the witness in cross examination who could furnish explanation on a particular issue, the 99 of 202 100 FIR No. 50/10 PS - Jahangir Puri correctness or legality of the said fact/issue could not be raised.
Since despite grant of opportunity PW15 - Bhoop Singh was not crossexamined on behalf of the accused.
At the cost of repetition, PW2 prosecutrix during her examinationinchief has specifically deposed which is reproduced and reads as under : Accused now present in Court (correctly identified) is my Chacha. On 05/02/2010, he was standing at Sai Baba Mandir at C Block, Jahangir Puri. I was peeling off cholia outside my house. Accused called me to the Mandir. I went to the Mandir as asked by the accused. From there, accused took me to a room in Swaroop Nagar. I requested accused to leave me at my house as it was night time but accused refused. Accused closed the door of the room and removed my underwear. He also removed his underwear. Then he lied down over me. Thereafter, he put his urinating organ in my urinating part. When I felt pain and cried, he pressed my mouth with his hand. Thereafter, accused asked me to hold his penis and shake the same. Accused had also slapped me and kept me in the room the whole night.
(Underlined by me) On analysing the entire testimony of PW2 - Prosecutrix, it 100 of 202 101 FIR No. 50/10 PS - Jahangir Puri transpires that she has described the scenario implicating the accused to be the author of the crime, of the committal of the sexual assault upon her. Accused has failed to elicit any material or relevant discrepancies or inconsistencies despite her searching crossexamination. The core facts about the committal of crime by the accused have remained intact.
In the circumstances, there is no substances in the plea so raised by the Learned counsel for accused.
22. Learned counsel for accused submitted that DD No. 25A shows that HC Hitender (PW5) gave it to Constable Jasvir for taking it to ASI Umed Singh for necessary action but HC Hitender (PW5) did not depose in his testimony before the court that he gave DD No. 25A at 1020 pm to Constable Jasvir (PW10) for taking it to ASI Umed Singh for necessary action. Even, Constable Jasvir (PW10) did not depose in his testimony that HC Hitender (PW5) gave him DD No. 25A on 07.02.2010 at 1020 pm for taking it to ASI Umed Singh for necessary action or that Constable Jasvir (PW10) gave DD No. 25A to him or to ASI Umed Singh on 07.02.2010 at 1020 pm or at any other time. It was 101 of 202 102 FIR No. 50/10 PS - Jahangir Puri not so stated even in Statement under Sec. 161 Cr.P.C. by Constable Jasvir to IO. Even, Constable Jasvir (PW10) did not depose in his testimony that he went to H.No. 1144, Gali No. 2, Khadda Colony on 07.02.2010 or on receipt of DD No. 25A. Even, ASI Umed Singh did not depose in his testimony that Constable Jasvir (PW10) brought to him DD No. 25A on 07.02.2010 at1020 pm or at any other time, allegedly given to Constable Jasvir (PW10) by HC Hitender (PW5) at 1020 pm for taking it to him for necessary action. There is no statement of ASI Umed Singh under Sec. 161 Cr.P.C. to IO. Even, IO SI Sushila Rana did not depose in her testimony that Constable Jasvir (PW10) brought DD No. 25A on 07.02.2010 at 1020 pm or at any other time to ASI Umed Singh, allegedly given to Constable Jasvir (PW10) by HC Hitender (PW5) at 1020 pm for talking it to him for necessary action or that ASI Umed Singh ever gave DD No. 25A to IOSI Sushila Rana at any time and yet, she acting as IO in this case, filed it along with Final report U/sec. 173 Cr.P.C. without disclosing as to from where did she got it - when she got it from whom she got it. Learned counsel further submitted that So, it is doubtful and not proved by prosecution that HC Hitender (PW5) gave DD No. 25A on 07.02.2010 at 1020 pm or at any 102 of 202 103 FIR No. 50/10 PS - Jahangir Puri other time to Constable Jasvir (PW10) for taking it to ASI Umed Singh for necessary action or that Constable Jasvir (PW10) ever gave DD No. 25A to ASI Umed Singh on 07.02.2010 at 1020 pm or at any other time.
I have carefully perused and analysed the evidence on record.
The testimonies of PW5 HC Hitender, PW12 Constable Jasvir PW14 ASI Umed Singh and PW20 - SI Sushila Rana, IO have been detailed and discussed herein before. On careful perusal and analysis the testimonies of PW5 HC Hitender, PW12 Constable Jasvir, PW14 ASI Umed Singh and PW20 - SI Sushila Rana, IO are found to be clear, cogent, convincing and inspiring confidence. Despite grant of opportunity, PW5 HC Hitender and PW10 Constable Jasvir were not cross examined on behalf of accused. There is nothing in the cross examination of PW14 ASI Umed Singh and PW20 - SI Sushila Rana, IO so as to impeach their creditworthiness.
So far as the plea raised by the Learned counsel for 103 of 202 104 FIR No. 50/10 PS - Jahangir Puri accused that, "DD No. 25A shows that HC Hitender (PW5) gave it to Constable Jasvir for taking it to ASI Umed Singh for necessary action but HC Hitender (PW5) did not depose in his testimony before the court that he gave DD No. 25A at 1020 pm to Constable Jasvir (PW10) for taking it to ASI Umed Singh for necessary action. Even, Constable Jasvir (PW10) did not depose in his testimony that HC Hitender (PW5) gave him DD No. 25A on 07.02.2010 at 1020 pm for taking it to ASI Umed Singh for necessary action or that Constable Jasvir (PW10) gave DD No. 25A to him or to ASI Umed Singh on 07.02.2010 at 1020 pm or at any other time. It was not so stated even in Statement under Sec. 161 Cr.P.C. by Constable Jasvir to IO. Even, Constable Jasvir (PW10) did not depose in his testimony that he went to H.No. 1144, Gali No. 2, Khadda Colony on 07.02.2010 or on receipt of DD No. 25A. Even, ASI Umed Singh did not depose in his testimony that Constable Jasvir (PW10) brought to him DD No. 25A on 07.02.2010 at1020 pm or at any other time, allegedly given to Constable Jasvir (PW10) by HC Hitender (PW5) at 1020 pm for taking it to him for necessary action. There is no statement of ASI Umed Singh under Sec. 161 Cr.P.C. to IO. Even, IO SI Sushila Rana did not depose in her testimony that Constable Jasvir 104 of 202 105 FIR No. 50/10 PS - Jahangir Puri (PW10) brought DD No. 25A on 07.02.2010 at 1020 pm or at any other time to ASI Umed Singh, allegedly given to Constable Jasvir (PW10) by HC Hitender (PW5) at 1020 pm for talking it to him for necessary action or that ASI Umed Singh ever gave DD No. 25A to IOSI Sushila Rana at any time and yet, she acting as IO in this case, filed it along with Final report U/sec. 173 Cr.P.C. without disclosing as to from where did she got it - when she got it from whom she got it. So, it is doubtful and not proved by prosecution that HC Hitender (PW5) gave DD No. 25A on 07.02.2010 at 1020 pm or at any other time to Constable Jasvir (PW10) for taking it to ASI Umed Singh for necessary action or that Constable Jasvir (PW10) ever gave DD No. 25A to ASI Umed Singh on 07.02.2010 at 1020 pm or at any other time." is concerned, it is evident from the record that at the time of crossexamination of PW5 - HC Hitender, PW10 - Constable Jasvir, who were not crossexamined despite grant of opportunity and during the cross examination of PW14 - ASI Umed Singh and PW20 - SI Sushila Rana, IO, the said accused did not voice his concern or raised any apprehension on the aspect regarding which the plea has been raised. They were the only competent witnesses who would have fully capable of explaining correctly the factual 105 of 202 106 FIR No. 50/10 PS - Jahangir Puri situation. In such a situation the accused cannot be heard saying that adverse inference should be drawn against the prosecution. For such failure accused is to blame himself and none else.
At the cost of repetition, in case 'Mahavir Singh Vs. State of Haryana', (2014) 6 SCC 716, the Hon'ble Supreme Court has observed that it is settled legal proposition that in case the question is not put to the witness in crossexamination who could furnish explanation on a particular issue, the correctness or legality of the said fact/issue could not be raised.
In the circumstances, there is no substances in the plea so raised by the Ld counsel for accused.
23. Learned Counsel for accused submitted that accused Deepak is son of Devar of Smt. Krishna (complainant PW4) while alleged victim/prosecutrix (name withheld) is her granddaughter. So far Mr. Bhoop Singh is concerned, he is son of Smt.Krishna (complainant - PW4) and therefore, they all knew accused Deepak & alleged 106 of 202 107 FIR No. 50/10 PS - Jahangir Puri victim/prosecutrix (name withheld) very well. Even Smt. Amrita - another grand daughter of Smt. Krishna & her husband Mr. Nirmal - they all knew accused Deepak & alleged victim/prosecutrix (name withheld) very well. Learned counsel submitted that as per prosecution story, at the time of making PCR Call on 07.02.2010 at 1017 pm, Smt. Krishna (ComplainantPW4), Prosecutrix (name withheld) (PW2), Mr. Bhoop Singh (PW15), Smt. Amrita (PW6) & her husband Mr. Nirmal (PW8) they all knew accused Deepak & alleged victim/prosecutrix (name withheld) very well. Yet in PCR Call, no one named the accused or the victimwhy? He further submitted that the prosecution has miserably failed to prove beyond doubts in this case without even giving any explanation as to why no one named the accused or the victim in PCR Call made well after more than 48 hours of alleged rape when the name of alleged victim & alleged accused and time of occurrence and place of occurrence was known to all Smt. Krishna (Complainant PW4), prosecutrix (name withheld) (PW2), Mr. Bhoop Singh (PW15), Smt. Amrita (PW6) & her husband Mr. Nirmal (PW8).
I have carefully perused and analysed the evidence on 107 of 202 108 FIR No. 50/10 PS - Jahangir Puri record.
The testimonies of PW4 - Smt. Krishna, PW2 -
Prosecutrix, PW15 - Bhoop Singh, PW6 - Smt. Amrita and PW8 - Mr. Nirmal have been detailed, reproduced, analysed and discussed herein before. On careful perusal and analysis the testimonies of PW4 - Smt. Krishna, PW2 - Prosecutrix, PW15 - Mr. Bhoop Singh, PW6 - Smt. Amrita and PW8 - Mr. Nirmal are found to be clear, cogent, convincing and inspiring confidence. Despite grant of opportunity PW6 Smt. Amrita and PW15 Bhoop Singh were not crossexamined on behalf of the accused. There is nothing in the crossexamination of PW4 - Smt. Krishna, PW2 - Prosecutrix and PW8 - Mr. Nirmal so as to impeach their creditworthiness. There is nothing in their statements to suggest that they had any animus against the accused to falsely implicate him in the case. They have deposed regarding the facts as to what they observed, experienced and perceived.
So far as the plea raised by Learned counsel for accused that, " accused Deepak is son of Devar of Smt. Krishna (complainant 108 of 202 109 FIR No. 50/10 PS - Jahangir Puri PW4) while alleged victim/prosecutrix (name withheld) is her granddaughter. So far Mr. Bhoop Singh is concerned, he is son of Smt.Krishna (complainant - PW4) and therefore, they all knew accused Deepak & alleged victim/prosecutrix (name withheld) very well. Even Smt. Amrita - another grand daughter of Smt. Krishna & her husband Mr. Nirmal - they all knew accused Deepak & alleged victim/prosecutrix (name withheld) very well. As per prosecution story, at the time of making PCR Call on 07.02.2010 at 1017 pm, Smt. Krishna (ComplainantPW4), Prosecutrix (name withheld) (PW2), Mr. Bhoop Singh (PW15), Smt. Amrita (PW6) & her husband Mr. Nirmal (PW8) they all knew accused Deepak & alleged victim/prosecutrix (name withheld) very well. Yet in PCR Call, no one named the accused or the victimwhy? The prosecution has miserably failed to prove beyond doubts in this case without even giving any explanation as to why no one named the accused or the victim in PCR Call made well after more than 48 hours of alleged rape when the name of alleged victim & alleged accused and time of occurrence and place of occurrence was known to all Smt. Krishna (Complainant PW4), prosecutrix (name withheld) (PW2), Mr. Bhoop Singh (PW15), Smt. Amrita (PW6) & her husband 109 of 202 110 FIR No. 50/10 PS - Jahangir Puri Mr. Nirmal (PW8)" is concerned, it is evident from the record that at the time of crossexamination of PW6 - Smt. Amrita, PW15 - Bhoop Singh, who were not crossexamined despite grant of opportunity and during the crossexamination of PW4 - Smt. Krishna, PW2 - Prosecutrix and PW8 - Mr. Nirmal, the said accused did not voice his concern or raised any apprehension on the aspects regarding which the plea has been raised. They were the only competent witnesses who would have fully capable of explaining correctly the factual situation. In such a situation the accused cannot be heard saying that adverse inference should be drawn against the prosecution. For such failure accused is to blame himself and none else.
At the cost of repetition, in case 'Mahavir Singh Vs. State of Haryana', (2014) 6 SCC 716, the Hon'ble Supreme Court has observed that it is settled legal proposition that in case the question is not put to the witness in crossexamination who could furnish explanation on a particular issue, the correctness or legality of the said fact/issue could not be raised.
110 of 202 111 FIR No. 50/10 PS - Jahangir Puri So far as the plea raised by the Learned Counsel for the accused that, "there is a delay in reporting the matter to the police" is concerned, on careful perusal and analysis of the evidence on record, it is found that PW4 - Smt. Krishna during her examinationinchief has specifically deposed which is reproduced and reads as under: "On 05/02/2010, at about 8:00 a.m., I left the house for work and in the evening at 6:00 p.m. when I returned back, prosecutrix (name withheld) daughter of Roop Singh, then aged about ten years, was not at home. The other children of Roop Singh told me that prosecutrix (name withheld) was taken by Papa Deep Chand. They did not know where was prosecutrix (name withheld) taken by the accused. I kept searching for prosecutrix (name withheld) on 05/02/2010 and 06/02/2010.
On 06/02/2010, at about 8:00 a.m., I received a phone call from accused saying that there was nothing to worry and that he was bringing prosecutrix (name withheld) and asked me to reach the bus stand of 100 number. I along with my grand daughter Amrita and son in law Nirmal reached at 100 number bus stand. After waiting for about half an hour, prosecutrix (name withheld) got down from a bus alone. She was not accompanied by accused Deep Chand. Her clothes were torn. I brought her to my house. She was very much affraid. Prosecutrix (name withheld) informed my grand daughter Amritaa that she was taken to a room by accused Deepak where he took liquor and 111 of 202 112 FIR No. 50/10 PS - Jahangir Puri raped her. She also told her that accused had slapped her and had also threatened that in case she told about the incident to anyone, he would kill her. I searched for accused Deep Chand on 06/02/2010 and 07/02/2010. I then went to the Police Station and gave the statement Ex. PW4/A which bears my thumb mark at point 'A'."
During her crossexamination PW4 - Smt. Krishna has specifically deposed that "It is further incorrect to suggest that no complaint was filed till early morning of 08022010 as we were preparing the story of falsely implicate the accused".
In the circumstances, the delay in reporting the matter to the police stands sufficiently and satisfactorily explained.
The sight cannot be lost of the fact that the Indian women has tendency to conceal offence of sexual assault because it involves her prestige as well as prestige of her family. Only in few cases, the victim girl or the family members has courage to go before the Police Station and lodge a case.
112 of 202 113 FIR No. 50/10 PS - Jahangir Puri Delay in lodging of FIR is a normal phenomenon especially in cases like rape or outraging the modesty of a women, the aggrieved or the injured person or her relations will naturally think twice before giving a complaint to the police (Ref. Mohd. Habib Vs. State (Delhi Administration) 1989 CRLJ 137 (Delhi).
The delay in a case of sexual assault, cannot be equated with the case involving other offences. There are several factors which weigh in the mind of the prosecutrix and her family members before coming to the police station to lodge a complaint. In a tradition bound society prevalent in India, more particularly, rural areas, it would be quite unsafe to throw out the prosecution case merely on the ground that there is some delay in lodging the FIR. (Ref. State of Himachal Pradesh V. Prem Singh AIR 2009 SC 1010).
The Hon'ble Apex Court in Ravinder Kumar Vs. State of Punjab, VI (2001) SLT 471 has held as under : "The law has not fixed any time limit for lodging of FIR. Hence, a delayed FIR is not illegal. Of course a prompt and immediate lodging of the FIR is ideal as that would give the prosecution a twin 113 of 202 114 FIR No. 50/10 PS - Jahangir Puri advantage. First is that it affords commencement of the investigation without any time lapse. Second is that it expels the opportunity for any possible concoction of a false version."
In case Tara Singh Vs. State of Punjab, (1991 Suppl. (1) SCC 536), the Hon'ble Supreme Court has held that : "It is well settled that the delay in giving the FIR by itself cannot be a ground to doubt the prosecution case. Knowing the Indian conditions as they are we cannot expect these villagers to rush to the Police Station immediately after the occurrence. Human nature as it is, the kith and kin who have witnesses the occurrence cannot be expected to act mechanically with all the promptitude in giving the report to the Police."
In case Ashok Surajilal Ulke Vs. State of Maharashtra, 2011 Crl. L.J.2330, the Hon'ble Supreme Court while dealing with an offence of rape has observed that : "We have considered the arguments of learned Counsel. We are of the opinion that in a case of rape the fact that the FIR had been lodged after a little delay is of very little significance. There can be no doubt that an allegation of rape, and that too of a young child 15 years of age, is a matter of shame for the entire family and in many such cases the parents or even the prosecutrix are reluctant to go to the police to lodge a report and it is only when a situation particularly unpleasant arises for 114 of 202 115 FIR No. 50/10 PS - Jahangir Puri the prosecutrix that an FIR is lodged."
In State Vs. Gurmeet Singh, IV (1996) CCR 134 (SC), the Hon'ble Supreme Court, inter alia observed as under : "The Courts cannot overlook the fact that in sexual offence delay in the lodging of the FIR can be due to variety of the prosecutrix or her family members to go to the Police and complaint about the incident which concerns the reputation of the prosecutrix and the honour of her family. It is only after giving it a cool thought that a complaint of sexual offence is generally lodge."
In Gian Chand Vs. State, II (2001) SLT 740, the Hon'ble Supreme Court has observed as under : "That mere delay in filing FIR is no ground to doubt the case of the prosecution and not believing the testimony given by the prosecutrix in the Court. It was held that delay in lodging FIR cannot be used as a ritualistic formula for doubting the prosecution case and discarding the same solely on that ground."
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 115 of 202 116 FIR No. 50/10 PS - Jahangir Puri (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 V. State of H.P. AIR 2009 SC 3022 has interalia held : "21. In the context of Indian Culture, a woman victim of sexual aggression would rather suffer silently than to falsely implicate somebody. Any statement of rape is an extremely humiliating experience for a woman and until she is a victim of sex crime, she would not blame anyone but the real culprit. While appreciating the evidence of the prosecutrix, the Courts must always keep in mind that no selfrespecting woman would put her honour at stake by falsely alleging commission of rape on her and, therefore, ordinarily a look for corroboration of her 116 of 202 117 FIR No. 50/10 PS - Jahangir Puri 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 V. 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......."
In the case of 'Wahid Khan Vs. State of Madhya 117 of 202 118 FIR No. 50/10 PS - Jahangir Puri 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.
24. Learned counsel for accused submitted that as per PW14 ASI Umed Singh, he reached at the spot i.e. Jhuggi No. 555, H Block, Near Sai Baba Mandir, Jahangir Puri on the intervening night of 07/08.02.2010 along with Constable Jasvir (PW10) but Constable Jasvir as PW10 did not corroborate such theory planted by ASI Umed Singh. Even alleged victim/prosecutrix (name withheld) (PW2), Smt. Krishna (PW4), Smt. Amrita (PW6), Mr. Nirmal (PW8), Mr. Bhoop Singh (PW15) or any other PWs had not corroborated the said story of PW14 118 of 202 119 FIR No. 50/10 PS - Jahangir Puri ASI Umed Singh that he reached at the spot i.e. Jhuggi No. 555, H Block, Near Sai Baba Mandir, Jahangir Puri on the intervening night of 7/8.02.2010 along with Ct. Jasvir. PW14 ASI Umed Singh further deposed that Ct. Sunita also reached the spot i.e. Jhuggi No. 555, H Block, Near Sai Baba Mandir, Jahangir Puri on the intervening night of 07/08.02.2010 but no such L/ Constable Sunita was produced in the Witness Box in the Court by the prosecution. One Constable Subita appeared as PW12 in this case but she never corroborated of PW14 ASI Umed Singh that she also reached at the spot i.e. Jhuggi No. 555, H Block, Near Sai Baba Mandir, Jahangir Puri on the intervening night of 07/08.02.2010. PW16 Constable Sunit also deposed that on the intervening night of 07/08.02.2010, he was posted at PS Jahangir Puri & that he along with PW14 ASI Umed Singh & Constable Jasbir reached the spot i.e. Jhuggi No. 555, HBlock, Near Sai Baba Mandir, Jahangir Puri on the intervening night of 07/08.02.2010. However, PW14 ASI Umed Singh or Constable Jasvir (PW10) did not state so in their testimony before the Court that PW16 Constable Sunit along with PW14 ASI Umed Singh & Constable Jasbir reached the spot i.e. Jhuggi No. 555, HBlock, Near Sai Baba Mandir, Jahangir Puri on the 119 of 202 120 FIR No. 50/10 PS - Jahangir Puri intervening night of 07/08.02.2010. why? Learned counsel further submitted that as per story of PW14 ASI Umed Singh, he came back to PS alongwith prosecutrix (name withheld), Smt. Krishna but gave no reasons as to why Mrs. Amrita or Mr. Nirmal or Mr. Bhoop Singh or any of the 3 brothers of prosecutrix (name withheld) or any other son of Smt. Krishna did not come back to PS with them. Why ladies alone came to PS? Learned Counsel further submitted that significantly, PW14 ASI Umed Singh did not depose that prosecutrix (name withheld), Smt. Krishna, Mrs. Amrita or Mr. Nirmal or Mr. Bhoop Singh or any of the 3 brothers of prosecutrix (name withheld) or any other son of Smt. Krishna told him that it was prosecutrix (name withheld) who had been raped or that it was accused Deepak who had allegedly raped her or that any one gave him the name of the accused or victim or time of occurrence. Learned counsel further submitted that this is strange and it is not believable that police goes to a spot of occurrence of alleged kidnapping & rape and alleged rape victim was present, her grand mother Smt. Krishna was present, her relatives Mrs. Amrita, Mr. Nirmal and Mr. Bhoop Singh and her 3 brothers and her one sister were present and as per prosecution story, they all knew that 2 days ago, prosecutrix (name 120 of 202 121 FIR No. 50/10 PS - Jahangir Puri withheld) was raped by accused Deepak but yet no one named the accused or the victim or time of occurrence or place of occurrence.
I have carefully perused and analysed the evidence on record.
The testimonies of PW4 - Smt. Krishna, PW2 -
Prosecutrix, PW15 - Bhoop Singh, PW6 - Smt. Amrita, PW8 - Mr. Nirmal, PW12 - W/Constable Subita and PW14 - SI Umed Singh, have been detailed, reproduced, analysed and discussed herein before. On careful perusal and analysis the testimonies of PW4 - Smt. Krishna, PW2 - Prosecutrix, PW15 - Bhoop Singh, PW6 - Smt. Amrita, PW8 - Mr. Nirmal, PW12 - W/Constable Subita and PW14 - SI Umed Singh are found to be clear, cogent, convincing and inspiring confidence. Despite grant of opportunity PW6 - Smt. Amrita, PW12 - W/Constable Subita and PW15 - Bhoop Singh were not crossexamined on behalf of the accused. There is nothing in the crossexamination of PW4 - Smt. Krishna, PW2 - Prosecutrix, PW8 - Mr. Nirmal and PW14 - SI Umed Singh so as to impeach their creditworthiness. There is also nothing in 121 of 202 122 FIR No. 50/10 PS - Jahangir Puri their statements to suggest that they had any animus against the accused to falsely implicate him in the case. They have deposed regarding the facts as to what they observed, experienced, perceived and acted and performed during the course of investigation.
So far as the plea raised by Learned counsel for accused that, "As per PW14 ASI Umed Singh, he reached at the spot i.e. Jhuggi No. 555, H Block, Near Sai Baba Mandir, Jahangir Puri on the intervening night of 07/08.02.2010 along with Constable Jasvir (PW10) but Constable Jasvir as PW10 did not corroborate such theory planted by ASI Umed Singh. Even alleged victim/prosecutrix (name withheld) (PW2), Smt. Krishna (PW4), Smt. Amrita (PW6), Mr. Nirmal (PW8), Mr. Bhoop Singh (PW15) or any other PWs had not corroborated the said story of PW14 ASI Umed Singh that he reached at the spot i.e. Jhuggi No. 555, HBlock, Near Sai Baba Mandir, Jahangir Puri on the intervening night of 7/8.02.2010 along with Ct. Jasvir. PW14 ASI Umed Singh further deposed that Ct. Sunita also reached the spot i.e. Jhuggi No. 555, HBlock, Near Sai Baba Mandir, Jahangir Puri on the intervening night of 07/08.02.2010 but no such L/ Constable Sunita was 122 of 202 123 FIR No. 50/10 PS - Jahangir Puri produced in the Witness Box in the Court by the prosecution. One Constable Subita appeared as PW12 in this case but she never corroborated of PW14 ASI Umed Singh that she also reached at the spot i.e. Jhuggi No. 555, HBlock, Near Sai Baba Mandir, Jahangir Puri on the intervening night of 07/08.02.2010. PW16 Constable Sunit also deposed that on the intervening night of 07/08.02.2010, he was posted at PS Jahangir Puri & that he along with PW14 ASI Umed Singh & Constable Jasbir reached the spot i.e. Jhuggi No. 555, HBlock, Near Sai Baba Mandir, Jahangir Puri on the intervening night of 07/08.02.2010. However, PW14 ASI Umed Singh or Constable Jasvir (PW10) did not state so in their testimony before the Court that PW16 Constable Sunit along with PW14 ASI Umed Singh & Constable Jasbir reached the spot i.e. Jhuggi No. 555, HBlock, Near Sai Baba Mandir, Jahangir Puri on the intervening night of 07/08.02.2010. why? As per story of PW14 ASI Umed Singh, he came back to PS alongwith prosecutrix (name withheld), Smt. Krishna but gave no reasons as to why Mrs. Amrita or Mr. Nirmal or Mr. Bhoop Singh or any of the 3 brothers of prosecutrix (name withheld) or any other son of Smt. Krishna did not come back to PS with them. Why ladies alone came to PS? Significantly, PW14 ASI 123 of 202 124 FIR No. 50/10 PS - Jahangir Puri Umed Singh did not depose that prosecutrix (name withheld), Smt. Krishna, Mrs. Amrita or Mr. Nirmal or Mr. Bhoop Singh or any of the 3 brothers of prosecutrix (name withheld) or any other son of Smt. Krishna told him that it was prosecutrix (name withheld) who had been raped or that it was accused Deepak who had allegedly raped her or that any one gave him the name of the accused or victim or time of occurrence. This is strange and it is not believable that police goes to a spot of occurrence of alleged kidnapping & rape and alleged rape victim was present, her grand mother Smt. Krishna was present, her relatives Mrs. Amrita, Mr. Nirmal and Mr. Bhoop Singh and her 3 brothers and her one sister were present and as per prosecution story, they all knew that 2 days ago, prosecutrix (name withheld) was raped by accused Deepak but yet no one named the accused or the victim or time of occurrence or place of occurrence." is concerned, it is evident from the record that at the time of crossexamination of PW6 - Smt. Amrita, PW12 W/Constable Subita and PW15 - Bhoop Singh, who were not crossexamined despite grant of opportunity and during the crossexamination of PW4 - Smt. Krishna, PW2 - Prosecutrix, PW14 SI Umed Singh and PW8 - Mr. Nirmal, the said accused did not voice his concern or raised any apprehension on the 124 of 202 125 FIR No. 50/10 PS - Jahangir Puri aspects regarding which the plea has been raised. They were the only competent witnesses who would have fully capable of explaining correctly the factual situation. For such failure accused is to blame himself and none else.
At the cost of repetition, in case 'Mahavir Singh Vs. State of Haryana', (2014) 6 SCC 716, the Hon'ble Supreme Court has observed that it is settled legal proposition that in case the question is not put to the witness in crossexamination who could furnish explanation on a particular issue, the correctness or legality of the said fact/issue could not be raised.
As regards nonproduction of L/Constable Sunita is concerned, on careful perusal and analysis of the entire evidence on record, it is found that it is not L/Constable Sunita, as the name mentioned in the evidence of PW14 - SI Umed Singh or Constable Suvita as the name mentioned in the evidence of PW20 - SI Sushila Rana, IO, the correct name of the said witness is W/Constable Subita, who has been produced and examined as PW12. In the 125 of 202 126 FIR No. 50/10 PS - Jahangir Puri circumstances, it appears that due to typographical error and due to phonetic similarity her name came to be mentioned as L/Constable Sunita in the evidence of PW14 - SI Umed Singh and as Ct. Suvita in the evidence of PW20 - SI Sushila Rana, IO. Moreover, it is also evident from the record that during the crossexamination of PW20 - SI Sushila Rana, IO, the accused did not voice his concern or raised any apprehension regarding the nonexamination of witness L/Constable Sunita. She was the only competent witness who would have been fully capable of explaining correctly the factual situation. For such failure accused is to blame himself and none else.
In the circumstances, there is no substances in the plea so raised by the Learned counsel for accused.
25. Learned counsel for accused submitted that PW2 prosecutrix (name withheld) and PW4 Smt. Krishna do not corroborate such story that IO Mrs. Sushila Rana made any inquiries from them at PS. No record of such inquiry had been produced on record of this case. Even PW14 ASI Umed Singh does not say that IO Sushila Rana made 126 of 202 127 FIR No. 50/10 PS - Jahangir Puri any inquiries from PW2 prosecutrix (name withheld) or PW4 Smt. Krishna at PS on 08.02.2010. Learned Counsel further submitted that assuming that IO Sushila Rana made inquiries from PW2 prosecutrix (name withheld) and PW4 Smt. Krishna at PS on 08.02.2010, why would PW2 prosecutrix (name withheld) or PW4 Smt. Krishna conceal it from the Court that IO Mrs. Sushila Rana made inquiries from PS on 08.02.2010 and at least in such inquiry, PW2 prosecutrix (name withheld) as well as PW4 Smt. Krishna must have and should have told IO Sushila Rana that PW2 prosecutrix (name withheld) was alleged victim or that the accused Deepak had committed the rape & kidnapping on PW2 prosecutrix (name withheld) or that such alleged rape was made on 05/02/2010 but IO Mrs. Sushila Rana nowhere stated so or noted so in case records nor did she so deposed in her testimony in the Court. Learned counsel submitted that, why the alleged victim PW2 Prosecutrix (name withheld) and her grandmother PW4 Smt. Krishna would conceal firstly from ASI Umed Singh and then, from IO Mrs. Sushila Rana that PW2 Prosecutrix (name withheld) was alleged victim or that the accused Deepak had committed the kidnapping & rape on PW2 Prosecutrix (name withheld) or that such alleged rape was made 127 of 202 128 FIR No. 50/10 PS - Jahangir Puri on 5/2/2010 and that she had taken bath after such rape twice and that she had changed her clothes twice or that her clothes were torn in rape or that after/during rape, the accused Deepak threatened PW2 Prosecutrix (name withheld) to kill her if she would tell about her rape to anyone. No explanation is given by the prosecution or by PW2 Prosecutrix (name withheld) or by PW4 Smt. Krishna/IO Mrs. Sushila Rana or by ASI Umed Singh for such blunder.
I have carefully perused and analysed the evidence on record.
The testimonies of PW4 -Smt. Krishna, PW2 - Prosecutrix, PW15 - Bhoop Singh, PW6 - Smt. Amrita, PW8 - Mr. Nirmal, PW20
- SI Sushila Rana IO and PW14 - SI Umed Singh, have been detailed, reproduced, analysed and discussed herein before. On careful perusal and analysis the testimonies of PW4 -Smt. Krishna, PW2 - Prosecutrix, PW15 - Bhoop Singh, PW6 - Smt. Amrita, PW8 - Mr. Nirmal, PW20
- SI Sushila Rana IO and PW14 - SI Umed Singh are found to be clear, 128 of 202 129 FIR No. 50/10 PS - Jahangir Puri cogent, convincing and inspiring confidence. Despite grant of opportunity PW6 - Smt. Amrita and PW15 - Bhoop Singh were not crossexamined on behalf of the accused. There is nothing in the cross examination of PW4 -Smt. Krishna, PW2 - Prosecutrix, PW8 - Mr. Nirmal, PW20 - SI Sushila Rana IO and PW14 - SI Umed Singh so as to impeach their creditworthiness. There is also nothing in their statements to suggest that they had any animus against the accused to falsely implicate him in the case. They have deposed regarding the facts as to what they observed, experienced, perceived and acted and performed during the course of investigation.
So far as the plea raised by Learned counsel for accused that, "PW2 prosecutrix (name withheld) and PW4 Smt. Krishna do not corroborate such story that IO Mrs. Sushila Rana made any inquiries from them at PS. No record of such inquiry had been produced on record of this case. Even PW14 ASI Umed Singh does not say that IO Sushila Rana made any inquiries from PW2 prosecutrix (name withheld) or PW4 Smt. Krishna at PS on 08.02.2010. Assuming that IO Sushila Rana made inquiries from PW2 prosecutrix (name withheld) 129 of 202 130 FIR No. 50/10 PS - Jahangir Puri and PW4 Smt. Krishna at PS on 08.02.2010, why would PW2 prosecutrix (name withheld) or PW4 Smt. Krishna conceal it from the Court that IO Mrs. Sushila Rana made inquiries from PS on 08.02.2010 and at least in such inquiry, PW2 prosecutrix (name withheld) as well as PW4 Smt. Krishna must have and should have told IO Sushila Rana that PW2 prosecutrix (name withheld) was alleged victim or that the accused Deepak had committed the rape & kidnapping on PW2 prosecutrix (name withheld) or that such alleged rape was made on 05/02/2010 but IO Mrs. Sushila Rana nowhere stated so or noted so in case records nor did she so deposed in her testimony in the Court. why the alleged victim PW2 Prosecutrix (name withheld) and her grandmother PW4 Smt. Krishna would conceal firstly from ASI Umed Singh and then, from IO Mrs. Sushila Rana that PW2 Prosecutrix (name withheld) was alleged victim or that the accused Deepak had committed the kidnapping & rape on PW2 Prosecutrix (name withheld) or that such alleged rape was made on 5/2/2010 and that she had taken bath after such rape twice and that she had changed her clothes twice or that her clothes were torn in rape or that after/during rape, the accused Deepak threatened PW2 Prosecutrix (name withheld) to kill her if she would tell about her rape to 130 of 202 131 FIR No. 50/10 PS - Jahangir Puri anyone. No explanation is given by the prosecution or by PW2 Prosecutrix (name withheld) or by PW4 Smt. Krishna/IO Mrs. Sushila Rana or by ASI Umed Singh for such blunder." is concerned, it is evident from the record that at the time of crossexamination of PW6 - Smt. Amrita, PW15 - Bhoop Singh, who were not crossexamined despite grant of opportunity and during the crossexamination of PW4 - Smt. Krishna, PW2 - Prosecutrix, PW8 - Mr. Nirmal, PW20 SI Sushila Rana, IO and PW14 SI Umed Singh, the said accused did not voice his concern or raised any apprehension on the aspects regarding which the plea has been raised. They were the only competent witnesses who would have fully capable of explaining correctly the factual situation. For such failure accused is to blame himself and none else.
At the cost of repetition, in case 'Mahavir Singh Vs. State of Haryana', (2014) 6 SCC 716, the Hon'ble Supreme Court has observed that it is settled legal proposition that in case the question is not put to the witness in crossexamination who could furnish explanation on a particular issue, the correctness or legality of the said fact/issue could not be raised.
131 of 202 132 FIR No. 50/10 PS - Jahangir Puri In the circumstances, there is no substances in the plea so raised by the Ld counsel for accused.
26. Learned counsel for accused submitted that in fact, IO Mrs. Sushila Rana had not disclosed as to what was the outcome of alleged inquiries made by her at PS from PW2 prosecutrix (name withheld) and PW4 Smt. Krishna. Learned counsel submitted that assuming that victim (name withheld) (PW2), Smt. Krishna (PW4), Smt. Amrita (PW6), Mr. Nirmal (PW8), Mr. Bhoop Singh (PW15) and any of the 3 brothers of prosecutrix (name withheld) or her sister or any other son of Smt. Krishna told ASI Umed Singh that alleged rape was made on 05.02.2010 and that she had taken bath after such rape twice and that she had changed her clothes twice or that her clothes were torn in rape or that after/during rape, the accused Deepak @ Deep Chand slapped PW2 prosecutrix (name withheld) or that she was kept in a closed room or that the accused Deepak @ Deep Chand threatened PW2 prosecutrix (name withheld) to kill her if she would tell about her rape to anyone, why did PW14 ASI Umed Singh did not inform so to IO Sushila Rana, then why 132 of 202 133 FIR No. 50/10 PS - Jahangir Puri the statement of PW14 ASI Umed Singh to that effect was not recorded u/s 161 Cr.PC by IO and why did he not depose so in the Court in his testimony and why an FIR was not so recorded after getting full details of that matter. The prosecution appears to be concealing truth from the Court. Learned counsel further submitted that further assuming that victim/prosecutrix (name withheld) (PW2), Smt. Krishna (PW4) or Smt. Amrita (PW6), Mr. Nirmal (PW8), Mr. Bhoop Singh (PW15) and any of the 3 brothers of prosecutrix (name withheld) or her sister or any other son of Smt. Krishna told IO Sushila Rana that alleged rape was made on 05.02.2010 and that PW2 prosecutrix (name withheld) had taken bath after such rape twice and that she had changed her clothes twice or that her clothes were torn in rape or that after during rape, the accused Deepak @ Deep Chand slapped PW2 prosecutrix (name withheld) or that she was kept in a closed room or that the accused Deepak threatened PW2 prosecutrix (name withheld) to kill her if she would tell about her rape to anyone, why did IO Sushila Rana did not depose so in the Court in her testimony and why did or PW2 Prosecutrix (name withheld) or PW4 Smt. Krishna did not depose so in the Court in their testimony and why an FIR was not so recorded after getting full 133 of 202 134 FIR No. 50/10 PS - Jahangir Puri details of that matter. Learned Counsel submitted that now assuming that victim/prosecutrix (name withheld) (PW2), Smt. Krishna (PW4) Smt. Amrita (PW6) Mr. Nirmal (PW8) Mr. Bhoop Singh (PW15) and any of the 3 brothers of prosecutrix (name withheld) or her sister or any other son of Smt. Krishna did not tell ASI Umed Singh that alleged rape was made on 06.02.2010 and that PW2 prosecutrix (name withheld) had taken bath after such rape twice and that she had changed her clothes twice or that her clothes were torn in rape or that after/during rape, the accused Deepak slapped PW2 prosecutrix (name withheld) or that she was kept in a closed room or that the accused Deepak threatened PW2 prosecutrix (name withheld) to kill her if she would tell about her rape to any one and that it was not so told by PW2 prosecutrix (name withheld) and PW4 Smt. Krishna to IO Sushila Rana at P.S., how PW14 - ASI Mr. Umed Singh came to a conclusion that it was a rape case as informed by him to IO Sushila Rana on phone as per his deposition and why IO Mrs. Sushila Rana or any other police staff took PW2 prosecutrix (name withheld) for MLC for rape. Learned Counsel further submitted that the victim/prosecutrix (name withheld) (PW2), Smt. Krishna (PW4), Smt. Amrita (PW6), Mr. Nirmal (PW8), Mr. Bhoop Singh (PW15) and any 134 of 202 135 FIR No. 50/10 PS - Jahangir Puri of the 3 brothers of prosecutrix (name withheld) or her sister or any other son of Smt. Krishna did not tell ASI Umed Singh at first instance, on 07.02.2010 as well as to IO Mrs. Sushila Rana at second instance, at PS on 08.02.2010 that alleged rape was made on 06.02.2010 and that PW2 prosecutrix (name withheld) had taken bath after such rape twice and that she had changed her clothes twice or that her clothes were torn in rape or that after / during rape, the accused Deepak Chand slapped PW2 prosecutrix (name withheld) or that she was kept in a closed room or that the accused Deepak Chand threatened PW2 prosecutrix (name withheld) to kill her if she would tell about her rape to any one and that Mr. Bhoop Singh also did not so inform to PCR. Learned counsel further submitted that the only irresistible inference that can be drawn now is that so such thing happened as complained of in this case.
I have carefully perused and analysed the evidence on record.
The testimonies of PW4 - Smt. Krishna, PW2 -
Prosecutrix, PW15 - Bhoop Singh, PW6 - Smt. Amrita, PW8 - Mr. 135 of 202 136 FIR No. 50/10 PS - Jahangir Puri Nirmal, PW20 - SI Sushila Rana IO and PW14 - SI Umed Singh, have been detailed, reproduced, analysed and discussed herein before. On careful perusal and analysis the testimonies of PW4 -Smt. Krishna, PW2 - Prosecutrix, PW15 - Bhoop Singh, PW6 - Smt. Amrita, PW8 - Mr. Nirmal, PW20 - SI Sushila Rana IO and PW14 - SI Umed Singh are found to be clear, cogent, convincing and inspiring confidence. Despite grant of opportunity PW6 - Smt. Amrita and PW15 - Bhoop Singh were not crossexamined on behalf of the accused. There is nothing in the crossexamination of PW4 -Smt. Krishna, PW2 - Prosecutrix, PW8 - Mr. Nirmal, PW20 - SI Sushila Rana IO and PW14
- SI Umed Singh so as to impeach their creditworthiness. There is also nothing in their statements to suggest that they had any animus against the accused to falsely implicate him in the case. They have deposed regarding the facts as to what they observed, experienced, perceived and acted and performed during the course of investigation.
So far as the plea raised by Learned counsel for accused that, "In fact IO Mrs. Sushila Rana had not disclosed as to what was the outcome of alleged inquiries made by her at PS from PW2 prosecutrix 136 of 202 137 FIR No. 50/10 PS - Jahangir Puri (name withheld) and PW4 Smt. Krishna." and the plea that "assuming that victim (name withheld) (PW2), Smt. Krishna (PW4), Smt. Amrita (PW6), Mr. Nirmal (PW8), Mr. Bhoop Singh (PW15) and any of the 3 brothers of prosecutrix (name withheld) or her sister or any other son of Smt. Krishna told ASI Umed Singh that alleged rape was made on 05.02.2010 and that she had taken bath after such rape twice and that she had changed her clothes twice or that her clothes were torn in rape or that after/during rape, the accused Deepak @ Deep Chand slapped PW2 prosecutrix (name withheld) or that she was kept in a closed room or that the accused Deepak @ Deep Chand threatened PW2 prosecutrix (name withheld) to kill her if she would tell about her rape to anyone, why did PW14 ASI Umed Singh did not inform so to IO Sushila Rana, then why the statement of PW14 ASI Umed Singh to that effect was not recorded u/s 161 Cr.PC by IO and why did he not depose so in the Court in his testimony and why an FIR was not so recorded after getting full details of that matter. The prosecution appears to be concealing truth from the Court." and the plea that "further assuming that victim/prosecutrix (name withheld) (PW2), Smt. Krishna (PW4) or Smt. Amrita (PW6), Mr. Nirmal (PW8), Mr. Bhoop Singh (PW15) and any of the 3 brothers 137 of 202 138 FIR No. 50/10 PS - Jahangir Puri of prosecutrix (name withheld) or her sister or any other son of Smt. Krishna told IO Sushila Rana that alleged rape was made on 05.02.2010 and that PW2 prosecutrix (name withheld) had taken bath after such rape twice and that she had changed her clothes twice or that her clothes were torn in rape or that after during rape, the accused Deepak @ Deep Chand slapped PW2 prosecutrix (name withheld) or that she was kept in a closed room or that the accused Deepak threatened PW2 prosecutrix (name withheld) to kill her if she would tell about her rape to anyone, why did IO Sushila Rana did not depose so in the Court in her testimony and why did or PW2 Prosecutrix (name withheld) or PW4 Smt. Krishna did not depose so in the Court in their testimony and why an FIR was not so recorded after getting full details of that matter." and the plea that "assuming that victim/prosecutrix (name withheld) (PW2), Smt. Krishna (PW4) Smt. Amrita (PW6) Mr. Nirmal (PW8) Mr. Bhoop Singh (PW15) and any of the 3 brothers of prosecutrix (name withheld) or her sister or any other son of Smt. Krishna did not tell ASI Umed Singh that alleged rape was made on 06.02.2010 and that PW2 prosecutrix (name withheld) had taken bath after such rape twice and that she had changed her clothes twice or that her clothes were torn in 138 of 202 139 FIR No. 50/10 PS - Jahangir Puri rape or that after/during rape, the accused Deepak slapped PW2 prosecutrix (name withheld) or that she was kept in a closed room or that the accused Deepak threatened PW2 prosecutrix (name withheld) to kill her if she would tell about her rape to any one and that it was not so told by PW2 prosecutrix (name withheld) and PW4 Smt. Krishna to IO Sushila Rana at P.S., how PW14 ASI Mr. Umed Singh came to a conclusion that it was a rape case as informed by him to IO Sushila Rana on phone as per his deposition and why IO Mrs. Sushila Rana or any other police staff took PW2 prosecutrix (name withheld) for MLC for rape." and the plea that "the victim/prosecutrix (name withheld) (PW2), Smt. Krishna (PW4), Smt. Amrita (PW6), Mr. Nirmal (PW8), Mr. Bhoop Singh (PW15) and any of the 3 brothers of prosecutrix (name withheld) or her sister or any other son of Smt. Krishna did not tell ASI Umed Singh at first instance, on 07.02.2010 as well as to IO Mrs. Sushila Rana at second instance, at PS on 08.02.2010 that alleged rape was made on 06.02.2010 and that PW2 prosecutrix (name withheld) had taken bath after such rape twice and that she had changed her clothes twice or that her clothes were torn in rape or that after / during rape, the accused Deepak Chand slapped PW2 prosecutrix (name withheld) or 139 of 202 140 FIR No. 50/10 PS - Jahangir Puri that she was kept in a closed room or that the accused Deepak Chand threatened PW2 prosecutrix (name withheld) to kill her if she would tell about her rape to any one and that Mr. Bhoop Singh also did not so inform to PCR." are concerned, it is evident from the record that at the time of crossexamination of PW6 - Smt. Amrita, PW15 - Bhoop Singh, who were not crossexamined despite grant of opportunity and during the crossexamination of PW4 - Smt. Krishna, PW2 - Prosecutrix, PW8
- Mr. Nirmal, PW20 - SI Sushila Rana, IO and PW14 - SI Umed Singh, the said accused did not voice his concern or raised any apprehension on the aspects regarding which the plea has been raised. They were the only competent witnesses who would have fully capable of explaining correctly the factual situation. For such failure accused is to blame himself and none else.
At the cost of repetition, in case 'Mahavir Singh Vs. State of Haryana', (2014) 6 SCC 716, the Hon'ble Supreme Court has observed that it is settled legal proposition that in case the question is not put to the witness in crossexamination who could furnish explanation on a particular issue, the correctness or legality of the said fact/issue could 140 of 202 141 FIR No. 50/10 PS - Jahangir Puri not be raised.
In the circumstances, there is no substances in the plea so raised by the Learned counsel for accused.
27. Learned Counsel for accused submitted that it is claimed by the Prosecution in the Rukka Ex. PW20 that IO Mrs. Sushila Rana along with PW2 Prosecutrix (name withheld), PW4 Smt. Krishna, PW14 ASI Mr. Umed Singh, PW10 Constable Jasvir & PW9 HC Asha went to BJRM Hospital & they got done medical examination of PW2 prosecutrix (name withheld) through PW9 HC Asha whereupon MLC no. 5733 was made at 2.35 a.m. on 08.02.2010 by Dr. Rajesh Satija & Dr. Mamta and that PW2 prosecutrix (name withheld) was again examined at 9 a.m. on 08.02.2010 as per Endorsement no. E9632 by Dr. Mamta and then, IO Mrs. Sushila Rana obtained Statement of PW4 Smt. Krishna and found commission of offences complained of in this case and so, she sent that Rukka whereupon FIR No. 50/2010 was recorded at 11.15 a.m. on 08.02.2010. Learned counsel further submitted that 141 of 202 142 FIR No. 50/10 PS - Jahangir Puri interestingly, PW20 IO Mrs. Sushila Rana deposed in Witness Box that Constable Sunit, L/ Constable Subita also went with her to BJRM Hospital at that time. PW9 L/ Constable Asha also claimed that PW12 L/ Constable Subita also went with IO Mrs. Sushila Rana to BJRM Hospital at that time but she did corroborate IO Mrs. Sushila Rana that Constable Sunit also went with them to BJRM Hospital at that time. PW10 Constable Jasvir also claimed that PW12 L/ Constable Subita also went with IO Mrs. Sushila Rana to BJRM Hospital at that time but he also did corroborate IO Mrs. Sushila Rana that Constable Sunit also went with them to BJRM Hospital at that time. PW12 L/ Constable Subita also claimed that she herself also went with IO Mrs. Sushila Rana to BJRM Hospital at that time but she also did corroborate IO Mrs. Sushila Rana that Constable Sunit also went with them to BJRM Hospital at that time. PW14 ASI Mr. Umed Singh also claimed that he also went with IO Mrs. Sushila Rana to BJRM Hospital at that time but he also did corroborate IO Mrs. Sushila Rana that Constable Sunit or PW10 Constable Jasvir or PW12 L/ Constable Subita also went with them to BJRM Hospital at that time. PW16 Constable Sunit also claimed that he also went with IO Mrs. Sushila Rana to BJRM Hospital at that 142 of 202 143 FIR No. 50/10 PS - Jahangir Puri time but he also did corroborate IO Mrs. Sushila Rana that PW10 Constable Jasvir or PW12 L/ Constable Subita also went with them to BJRM Hospital at that time. PW2 Prosecutrix (name withheld) as well as PW4 Smt. Krishna also did not depose in the Court to the effect that PW14 ASI Mr. Umed Singh, PW16 Constable Sunit, PW12 L/ Constable Subita, PW9 L/ Constable Asha, PW10 Constable Jasvir or IO Mrs. Sushila Rana accompanied them to said Hospital. Learned Counsel further submitted that hence, it is doubtful if Constable Sunit or PW10 Constable Jasvir or PW12 L/ Constable Subita or PW9 L/ Constable Asha also went with PW2 prosecutrix (name withheld) & PW4 Smt. Krishna to BJRM Hospital at that time. In any case, why their names did not appear in Rukka Ex. PW20/A - the prosecution has miserably failed to explain it ?
I have carefully perused and analysed the evidence on record.
The testimonies of PW4 - Smt. Krishna, PW2 -
Prosecutrix, PW20 - SI Sushila Rana IO, PW10 - Constable Jasvir, 143 of 202 144 FIR No. 50/10 PS - Jahangir Puri PW12 - L/ Constable Subita, PW16 - Constable Sunit and PW14 - SI Umed Singh, have been detailed, reproduced, analysed and discussed herein before. On careful perusal and analysis, the testimonies of PW4
- Smt. Krishna, PW2 - Prosecutrix, PW20 - SI Sushila Rana IO, PW10
- Constable Jasvir, PW12 - L/ Constable Subita, PW16 - Constable Sunit and PW14 - SI Umed Singh are found to be clear, cogent, convincing and inspiring confidence. Despite grant of opportunity PW10 - Constable Jasvir, PW12 - L/ Constable Subita and PW16 - Constable Sunit were not crossexamined. There is nothing in the cross examination of PW4 - Smt. Krishna, PW2 - Prosecutrix, PW20 - SI Sushila Rana IO and PW14 - SI Umed Singh so as to impeach their creditworthiness. There is also nothing in their statements to suggest that they had any animus against the accused to falsely implicate him in the case. They have deposed regarding the facts as to what they observed, experienced, perceived and acted and performed during the course of investigation.
So far as the plea raised by the Learned counsel for the accused that, "it is doubtful if Constable Sunit or PW10 Constable Jasvir 144 of 202 145 FIR No. 50/10 PS - Jahangir Puri or PW12 L/ Constable Subita or PW9 L/ Constable Asha also went with PW2 prosecutrix (name withheld) & PW4 Smt. Krishna to BJRM Hospital at that time. In any case, why their names did not appear in Rukka Ex. PW20/A - the prosecution has miserably failed to explain it"
is concerned, the said discrepancy may reflect upon the investigation but does not reflect upon the substantive evidence and the probative value of the statement of PW2 prosecutrix made on material and relevant aspects. No does it vitiate or negate the case of prosecution which is otherwise proved on record by clear cogent and convincing evidence. The version of PW2 prosecutrix on the core spectrum of the crime has remained intact. Nor the said discrepancy dislodge the substratum of the prosecution case and despite its existence the clear, cogent, convincing, reliable and trustworthy evidence proved on the record bears out the case of prosecution.
In the circumstances, there is no substances in the plea so raised by the Learned Counsel for accused.
28. Learned Counsel for accused submitted that the Medical
145 of 202 146 FIR No. 50/10 PS - Jahangir Puri evidence in this case nowhere suggested that PW2 prosecutrix (name withheld) was kidnapped or raped, as alleged. Regarding Medical Examination of PW2 prosecutrix (name withheld) at 2.35 a.m. on 08.02.2010, it is prosecution case that doctors refused to conduct the gynaecological medical examination of PW2 prosecutrix (name withheld) as her mother was not present & MLC Ex. PW3/A showed that General physician did not find any abnormailty in medical examination of PW2 prosecutrix (name withheld) on 08.02.2010 at 2:35 A.M. & it was opined that Menarche (commencement of menstrual function in women) had not occurred. Even gynaecological medical examination of PW2 prosecutrix (name withheld) revealed that she had a history of sexual assault repeatedly. She had not external injury over her face or abdomen and that shows that she was not at all forced for alleged rape / kidnapping. When Medical Examination of PW2 prosecutrix (name withheld) was alleged conducted at 9:00 / 9:30 a.m. even her mother was not present admittedly & it was opined that Menarche (commencement of menstrual function in women) had not occurred. Again, the doctor noted that PW2 prosecutrix (name withheld) had a history of sexual assault repeatedly & last time 2 days ago. Her X 146 of 202 147 FIR No. 50/10 PS - Jahangir Puri ray advised at 3.00 am was not performed. No fresh internal bleeding was found by such doctor. PW2 prosecutrix (name withheld) had no sign of external injury on breast, mouth, hip & abdomen and that showed that she was not at all forced for alleged rape / kidnapping. Doctor found that PW2 prosecutrix (name withheld) was not cooperative in her Medical Examination. Neither the Physician nor Gynaecologist confirmed alleged rape or kidnapping. It had been noted in MLC NO. 5733 Ex. PW17/A that PW2 prosecutrix (name withheld) had alleged History of sexual assault repeatedly. As per Endorsement NO. E9632 on MLC NO. 5737, no finding of rape was returned by Gynaecologist Dr. Mamta. She is reported to have taken up Vaginal Washing, Urinal (uniral) blood sample, Oral swab, blood sample and cervical mucus collection of prosecutrix (name withheld) during her medical examination from 9:30 AM to 10:10 AM and Dr. Mamta give them in a parcel to L/ Constable Asha who in turn gave it to IO Mrs. Sushila Rana who allegedly deposited the same in Malkhana on 08.02.2010 but the same was not sent to FSL for 63 days. Now, it is not the case of prosecution that they had preserved the said materials in required / desired conditions and were sent to FSL through L/ Constable Asha only on 13.04.2010. The prosecution has not given 147 of 202 148 FIR No. 50/10 PS - Jahangir Puri any explanation for such 63 days in this case. In FSL, such samples were tested on 19.01.2011 i.e. after total delay of 353 days of sample taking date of 08.02.2010. Learned counsel submitted that it can be reasonably presumed that the chemical & physical properties of such sample had changed a lot during 353 days.
I have carefully perused and analysed the evidence on record.
The testimony of PW2 - Prosecutrix has been reproduced, discussed and analysed hereinbefore. At the cost of repetition, the testimony of PW2 - Prosecutrix has been found to be clear, natural, cogent, convincing and inspiring confidence. There is nothing in her statement to suggest that she had any animus against the accused to falsely implicate him in the case.
So far as the plea raised by the Learned Counsel for accused that, "the prosecutrix had alleged history of sexual assault repeatedly" is concerned, it is not made clear by the Learned Counsel for the accused as to what he intends to convey from the plea so raised.
148 of 202 149 FIR No. 50/10 PS - Jahangir Puri Does he intend to convey that PW2 - Prosecutrix is a girl of "easy virtues" or a girl of "loose moral character". If it is so, it is not permissible as every girl or woman has a right to protect her dignity and cannot be subjected to rape only for that reason."
In case Narender Kumar Vs. State (NCT of Delhi (2012) 7 SCC 171, the Hon'ble Supreme Court has held as under : "Even in cases where there is some material to show that the victim was habitual to sexual intercourse, no inference of the victim being a woman of "easy virtues" or a woman of "loose moral character"
can be drawn. Such a woman has a right to protect her dignity and cannot be subjected to rape only for that reason. She has a right to refuse to submit herself to sexual intercourse to anyone and everyone because she is not a vulnerable object or prey for being sexually assaulted by anyone and everyone. Merely because a woman is of easy virtue, her evidence cannot be discarded on that ground alone rather it is to be cautiously appreciated and the Court is required to adjudicate whether the accused committed rape on the victim on the occasion complained of. In view of the provisions of Sections 53 and 54 of the Evidence Act, 1872, unless the character of the prosecutrix itself is in issue, her character is not a relevant factor to be taken into consideration at all.
In 'State Vs. Ramdev Singh', AIR 2004 SC 1290, the Hon'ble Supreme Court observed that even if the victim in a given case has been promiscuous in her sexual behaviour earlier, she has a right to 149 of 202 150 FIR No. 50/10 PS - Jahangir Puri refuse to submit herself to sexual intercourse to anyone and everyone because she is not a vulnerable object or prey for being sexually assaulted by anyone or everyone.
The Hon'ble Supreme Court in case, 'Md. Eqbal & Anr. Vs. State of Jharkhand' AIR 2013 SC 3077 while relying upon the observations of 'Narender Kumar Vs. State (NCT of Delhi)' AIR 2012 SC 2281 had noted that even if a woman is of easy virtue or used to sexual intercourse, it cannot be a licence for any person to commit rape and it further held : "24. Conviction can be based on sole testimony of the prosecutrix provided it lends assurance of her testimony. However, in case the Court has reason not to accept the version of prosecutrix on its face value, it may look for corroboration. In case the evidence is read in its totality and the story projected by the prosecutrix is found to be improbable, the prosecutrix case becomes liable to be rejected.
The Court must act with sensitivity and appreciate the evidence in totality of the background of the entire case and not in the isolation. Even if the prosecutrix is of easy virtue/unchaste woman that itself cannot be a determinative factor and the Court is required to adjudicate whether the accused committed rape on the victim on the 150 of 202 151 FIR No. 50/10 PS - Jahangir Puri occasion complained of."
As regards nonfinding of any injury on the body of PW2 - Prosecutrix, is concerned, the absence of any injury on the body of the prosecutrix does not falsify the case of the prosecution which is otherwise proved on record by clear, cogent and convincing evidence.
It is also to be noticed that PW2 - Prosecutrix during her crossexamination by the Learned Counsel for the accused has specifically deposed that, "no injury was caused to me when my father committed "galat kaam" with me"
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 with or without emission of semen or even an attempt at penetration is quite possible to commit legally the offence of rape without producing any injury to the genitals or leaving any seminal stains. (Vide Modi in Medical jurisprudence 151 of 202 152 FIR No. 50/10 PS - Jahangir Puri and Toxicology (Twenty First Edition) at page 369 & 7Parikh's Textbook of Medical jurisprudence and Toxicology).
Explanation appended to Section - 375 IPC clearly provides penetration is sufficient to constitute the sexual intercourse necessary to the offence of rape.
It is also to be noticed that in case, 'Ranjit Hazarika Vs. State of Assam', (1998) 8 SCC 635, the Hon'ble Supreme Court observed that nonrupture of hymen or absence of injury on victim's private parts does not belie the testimony of the prosecutrix.
In case 'O. M. Baby (Dead) by LRs Vs. State of Kerala', 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.
152 of 202 153 FIR No. 50/10 PS - Jahangir Puri The medical and gynecological evidence of PW2 Prosecutrix has been discussed and analysed hereinbefore.
At the cost of repetition PW3 Dr. Sumitra, SR, Gynecology, BJRM Hospital has deposed that she has been deputed by the MS, BJRM Hospital to depose in the present case on behalf of Dr. Mamta who had proceeded on maternity leave. She has seen the MLC of prosecutrix (name withheld) D/o Roop Singh, aged about 10 years R/o Jhuggi No. 555, H2 Block, Jahangir Puri, Delhi. The prosecutrix was examined by Dr. Mamta in the Gynaecology Department. Initially, internal medical examination of the prosecutrix could not be done as there was nobody from her family to give consent and patient was minor. The endorsement given by Dr. Mamta in this regard is at point 'X' on MLC Ex. PW3/A upon which she (PW3) identify signature of Dr. Mamta at point 'A'. On the same day, patient was again brought for her medical examination around 9:00 a.m. by the Police accompanied by her grandmother. After taking consent from the grandmother, the internal medical examination of prosecutrix was conducted by Dr. Mamta. The 153 of 202 154 FIR No. 50/10 PS - Jahangir Puri patient was brought for her medical examination with alleged history of sexual assault. On examination, patient was conscious and alert. General condition was fair, pulse 86 bits per minute, pallor moderate. After assault, patient took bath and changed her clothes. On local examination, no sign of external injury over breast, mouth, lip and abdomen. Pubic hair not developed, libia majora and minora normal, hymen torn, bruising present, no fresh bleeding, patient was not co operative for examination and her sample collection. Gently cervical mucus sample taken. Vaginal washing was taken and blood sample and oral swab taken and sent for examination. The marginal notes given by Dr. Mamta on Ex. PW3/A is at point 'Y' which bears her signatures at point 'B'.
Despite grant of opportunity PW3 - Dr. Sumitra was not crossexamined on behalf of the accused.
At the cost of repetition PW17 Dr. Gopal Krishna, MO, BJRM Hospital has deposed that he has been deputed in this case by the MS of the Hospital to depose before the Court. He has seen MLC No. 154 of 202 155 FIR No. 50/10 PS - Jahangir Puri 5733 of prosecutrix (name withheld) D/o Roop Singh aged 10 years, female who was brought to Hospital for medical examination with alleged history of sexual assault. The patient was examined by Dr. Devinder, J.R., under the supervision of Dr. Rajesh Satija, CMO and thereafter, she was referred to S.R. Gynae. At present Dr. Devinder and Dr. Rajesh Satija are not working in their Hospital and their present whereabouts are not known. He is acquainted with their handwriting and signatures as he has seen them while writing and signing during the course of his duties. The MLC prepared by Dr. Devinder is Ex. PW17/A, bearing signature of Dr. Devinder at point 'A' and signature of Dr. Rajesh Satija who was the CMO on that day is at point 'B'.
There is nothing in the crossexamination of PW17 Dr. Gopal Krishna so as to impeach his creditworthiness.
So far as the plea raised by the Learned counsel for accused that, "neither the physician nor the gynaecologist confirmed rape on the MLC Ex. PW17/A of the Prosecutrix" is concerned, it is found to have no substance as it is well settled that, rape is crime and not 155 of 202 156 FIR No. 50/10 PS - Jahangir Puri a medical condition. Rape is legal term and not 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.
It is to be noticed that the opinion expressed by Modi in Medical jurisprudence and Toxicology (Twenty First Edition) at page 369 which reads as : "Thus to constitute the offence of rape it is not necessary that there should be complete penetration of penis with emission of semen and rupture of hymen. Partial penetration of the penis within the labia majora or the vulva or pudenda with or without emission of semen or even an attempt at penetration is quite possible to commit legally the offence of rape without producing any injury to the genitals or leaving any seminal stains. In such a case the medical officer should mention the negative facts in his report, but should not give his opinion that no rape had been committed. Rape, is crime and not a medical condition. Rape is a legal term and not a diagnosis to be made by the medical officer treating the victim. The only statement that can be made by the medical officer is that there is evidence of recent sexual activity.
156 of 202 157 FIR No. 50/10 PS - Jahangir Puri Whether the rape has occurred or not is a legal conclusion, not a medical one."
So far as the plea raised by the Learned counsel for accused that, "PW20 - SI Sushila Rana, IO allegedly deposited the samples in malkhana on 08.02.2010 but the same were sent to FSL through PW - L/Constable Asha only on 13.04.2010 and there is no explanation for such 63 days" is concerned, it is evident from the record that during the crossexamination of PW20 - SI Sushila Rana, IO, the said accused did not voice his concern or raised any apprehension on the aspect regarding which the plea has been raised. She was the only competent witness who would have been fully capable of explaining correctly the factual situation. For such failure accused is to blame himself and none else.
So far as the plea raised by the Learned Counsel for accused that, "in FSL the samples were tested on 19.01.2011, i.e after total delay of 353 days, of the taking of the samples on 08.02.2010 and it 157 of 202 158 FIR No. 50/10 PS - Jahangir Puri can be reasonably presumed that the chemical & physical properties of such sample must have changed a lot during 353 days" is concerned, it is evident from the record that at the time of the crossexamination of PW19 Ms. L.Babyto Devi, Sr. Scientific Officer, FSL Rohini, who was not crossexamined despite grant of opportunity, the said accused did not voice his concern or raised any apprehension on the aspect regarding which the plea has been raised. She was the only competent witness who would have been fully capable of explaining correctly the factual situation. For such failure accused is to blame himself and none else.
At the cost of repetition, in case 'Mahavir Singh Vs. State of Haryana', (2014) 6 SCC 716, the Hon'ble Supreme Court has observed that it is settled legal proposition that in case the question is not put to the witness in crossexamination who could furnish explanation on a particular issue, the correctness or legality of the said fact/issue could not be raised.
In the circumstances, there is no substance in the plea so raised by the Learned Counsel for the accused.
158 of 202 159 FIR No. 50/10 PS - Jahangir Puri
29. Learned Counsel for accused submitted that FSL Report does not support prosecution case of rape as result of analysis Ex. PW19/A shows that; semen could not be detected on cotton swab or cervical mucus collection of prosecutrix (name withheld); semen could not be detected in vaginal wash of PW2 prosecutrix (name withheld); semen could not be detected on oral swab of PW2 prosecutrix (name withheld); semen could not be detected on 1st slide of oral swab of PW2 prosecutrix (name withheld); semen could not be detected on 2nd slide of oral swab of PW2 prosecutrix (name withheld); semen could not be detected on urine & oxilated blood vial; Human semen could be detected only on underwear but the prosecution had not stated as to whom did that underwear belonged. Assuming that such underwear was that of the accused Deepak, he is a young boy of 23 years age & that is possible but in any case, it is not the prosecution case that it was same underwear that was same underwear that was worn by the accused Deepak at the time of alleged rape. Now assuming that such underwear was that of PW2 prosecutrix (name withheld), it is not the prosecution case that it was same underwear that was worn by PW2 prosecutrix (name withheld) at 159 of 202 160 FIR No. 50/10 PS - Jahangir Puri the time of alleged rape. Lastly, here it may be noted that the case of the prosecution is that before the alleged rape, the underwear / kutchi of PW2 prosecutrix (name withheld) has been removed by the accused Deepak and therefore, it could not have traces of semen thereon until and unless some body would have set up a case that PW2 prosecutrix (name withheld) used it for cleaning / sweeping her organs or that she wore that again immediate after the alleged rape but that is not the case of prosecution herein. Further, semen stains on said underwear had not reaction as per Ex. PW19/B; FSL had not reported that the alleged semen was matching to semen of Deepak; Regarding Blood samples, during inordinate unexplained delay period of 353 days, they all had putrified and hence no opinion was given qua them by FSL. Learned counsel submitted that so, it is very clear that even FSL had not confirmed kidnap / Rape of Prosecutrix (name withheld).
I have carefully perused and analysed the evidence on record.
The biological and serological evidence Ex.PW19/A and 160 of 202 161 FIR No. 50/10 PS - Jahangir Puri Ex. PW19/B has been reproduced, discussed and analysed herein before.
So far as the plea raised by the Learned counsel for accused that, "the FSL reports Ex. PW19/A and Ex. PW19/B do not support the prosecution case of rape" is concerned, it is found to have no substance, in view of as to what has been discussed under the heading "Biological and Serological Evidence", however, at the cost of repetition, as per the biological report Ex.PW19/A, prosecution has discharged its initial burden of proving the presence of Human semen on exhibit '3' (underwear of the accused Deepak @ Deep Chand seized vide seizure memo Ex. PW16/A dated 08/02/2010). Accused was under an obligation to explain how and under what circumstances, the Human semen came to be present on the said exhibit '3' as detailed hereinabove. The absence of such an explanation both in the section 313 Cr.P.C. statement of the accused Deepak @ Deep Chand and his omission to lead any evidence in this regard and his complete denial becomes an additional link in the 161 of 202 162 FIR No. 50/10 PS - Jahangir Puri prosecution case.
So far as the plea raised by the Learned counsel for accused that, "Human semen could be detected only on underwear (Exhibit '3') but the prosecution had not stated as to whom did that underwear belonged " is concerned, with due respect it appears that Learned Counsel for the accused has either not read or misread the evidence on record. While discussing and analysing the biological and serological evidence and detailing the description of the articles contained in the parcels hereinbefore, it was clearly indicated that Parcel No. 3 containing Exhibit '3' (underwear of accused Deepak @ Deepchand) belonged to accused Deepak @ Deepchand which was seized vide seizure memo Ex. PW16/A dated 08.02.2010.
At the cost of repetition, as per biological report Ex. PW19/A the description of articles contained in parcel and result of analysis reads as under : 162 of 202 163 FIR No. 50/10 PS - Jahangir Puri Parcel '1' : One sealed cardboard box sealed with the seal of "BJRMH J. PURI DELHI" containing exhibits '1A', '1B', '1C(a)', '1C(b)', '1C(c)', '1D(a)', '1D(b)', '1E(a)' and '1E(b)'. Exhibit '1A' : Cotton wool swab on a wooden stick labelled as 'Step 9 Cervical mucus collection'. Exhibit '1B' : Dirty liquid kept in an injection syringe labelled as 'Step 11 Washing from vagina'.
Exhibit '1C(a)' : Cotton wool swab on a wooden stick labelled as 'Step 13 Oral swab'.
Exhibit '1C(b)' : Two microslides havign faint smear labelled as & '1C(c)' 'Step 13 Oral swab'. Exhibit '1D(a)' : One vial having dark brown foul smelling
liquid labelled as 'Step 14 Blood collection of victim'.
Exhibit '1D(b)' : One vial having dark brown foul smelling liquid 'Step 14 Blood collection of victim'.
Exhibit '1E(a)' : Dark brown foul smelling liquid labelled as 'Step 15 Urine & Oxalate blood vial'.
Exhibit '1E(b)' : Dark orangish yellow foul smelling liquid labelled as 'Step 15 Urine & Oxalate blood vial.
Parcel '3' : One sealed cloth parcel sealed with the seal of "MS BJRMH J. PURI DELHI" containing exhibit '3'.
Exhibit '3' : One underwear. Parcel '4' : One sealed cloth parcel sealed with the seal of
"MS BJRMH J. PURI DELHI" containing exhibit '4'. Exhibit '4' : Dark brown foul smelling liquid described as 163 of 202 164 FIR No. 50/10 PS - Jahangir Puri 'Blood sample of accused'.
(Underlined by me) RESULT OF ANALYSIS
1. Semen could not be detected on exhibits '1A', '1B', '1C(a)', '1C(b)', '1C(c)' and '1E(b)'.
2. Human semen was detected on exhibit '3'.
3. Blood was detected on exhibits '1D(a)', '1D(b)', 1E(a)' and '4'.
4. Report of serological analysis in original is attached herewith. NOTE : Remnants of the exhibits have been sealed with the seal of 'BD FSL DELHI'.
As per the biological report Ex. PW19/A, 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. PW12/A dated 08/02/2010 and parcel nos. 3 & 4 belong to the accused Deepak @ Deep Chand which were seized vide seizure memo Ex. PW16/A dated 08/02/2010.
(Underlined by me) In the circumstances, there is no substances in the plea so 164 of 202 165 FIR No. 50/10 PS - Jahangir Puri raised by the Learned counsel for accused.
30. Learned Counsel for accused submitted that there is no medical record to confirm any allegations of rape or physical beating / slapping of PW2 prosecutrix (name withheld) by the accused Deepak Chand in this case and that may be called sufficient enough to convict the accused in this case.
I have carefully perused and analysed the evidence on record.
The testimony of PW2 - Prosecutrix has been reproduced, discussed and analysed hereinbefore. At the cost of repetition, the testimony of PW2 - Prosecutrix has been found to be clear, natural, cogent, convincing and inspiring confidence. There is nothing in her statement to suggest that she had any animus against the accused to falsely implicate him in the case.
The related plea raised by the Learned Counsel for the 165 of 202 166 FIR No. 50/10 PS - Jahangir Puri accused have been analysed and discussed hereinbefore, therefore, does not call for any further discussion.
In the circumstances, there is no substance in the plea so raised by the Learned Counsel for the accused.
31. Learned Counsel for accused submitted that Time & place of occurrence: are not stated in Charge framed by the court.
I have carefully perused and analysed the evidence on record.
So far as the plea raised by the Learned counsel for accused that, "time and place of occurrence are not stated in charge framed by the Court" is concerned, it is found to have no substance, with due respect, it appears that Learned Counsel for the accused has either not read or misread the material/evidence on the record. Perusal of the record shows that the Learned Predecessor Court after hearing on charge, finding that prima facie a case under sections 363/342/376(2)
(f)/323/506 IPC was made out against accused Deepak @ Deepchand, 166 of 202 167 FIR No. 50/10 PS - Jahangir Puri framed the charge accordingly on 17.01.2011, which was read over and explained to the accused to which he had pleaded not guilty and had claimed trial.
It is pertinent to reproduce the charge framed on 17.01.2011 against the accused Deepak @ Deepchand which reads as under: CHARGE I, Virender Kr. Goyal ASJ, Delhi, do hereby charge you Deepak @ Deep Chand son of Dina Nath as under:
That on 05/02/10, near about 06.00 pm, you enticed one minor girl prosecutrix (name withheld), aged about 10 years, out of keeping of lawful guardianship without the consent of such guardian and thereby you committed an offence punishable u/s 363 of IPC and within my cognizance.
Secondly, on the aforesaid date, after kidnapping, you 167 of 202 168 FIR No. 50/10 PS - Jahangir Puri wrongfully confined prosecutrix (name withheld) in H.No. 1144, Gali No.2, Khadda Colony, Swaroop Nagar, Delhi (House of Mahender) and thereby made yourself liable for an offence punishable U/s. 342 of IPC and within my cognizance.
Thirdly, on the above date and place, at about 10 p.m., you committed rape on prosecutrix (name withheld), female child, aged about 10 years, without her consent and thereby you made yourself liable for offence punishable u/s 376(2)(f) IPC and within the cognizance of this court.
Fourthly, on the above date, time and place, you also voluntarily caused hurt to prosecutrix (name withheld) with kicks and fist blows and thereby you made yourself liable for an offence U/s 323 IPC and within my cognizance.
Fifthly, on the aforesaid date, time and place, you also criminally intimidated said prosecutrix (name withheld) to kill her in case she reported the matter to police and thereby you made yourself 168 of 202 169 FIR No. 50/10 PS - Jahangir Puri liable for an offence punishable u/s 506 IPC and within the cognizance of this court.
And I hereby direct you be tried by this court for the aforesaid offences.
(Sd) ASJ/Delhi/17/1/11 The charge is read over and explained to the accused to which he is questioned as under: Q. Do you plead guilty or claim trial?
Ans. I do not plead guilty and claim trial.
RO & AC (Sd)
(Virender Kumar Goyal)
Additional Sessions Judge
Fast Track Court, Rohini, Delhi
17/1/2011
In the circumstances, there is no substance in the plea so raised by the Learned Counsel for the accused.
169 of 202 170 FIR No. 50/10 PS - Jahangir Puri
32. Learned Counsel for accused submitted that in statement under Section 161 and under Section 164 Cr. PC, PW2 prosecutrix (name withheld) stated that she was peeling choliya in front of her house in H2 Block of Jahangir Puri (when the commission of offence began) and from there the accused Deepak took her away to a room at Swaroop Nagar but before the Court, she deposed that the accused Deepak was standing at C Block Mandir at Jahangir Puri & that the accused Deepak called her there and from there the accused took her away to a room at Swaroop Nagar. How did accused called PW2 prosecutrix (name withheld) from H2 Block of Jahangir Puri to CBlock Mandir - is doubtful / suspicious. Now, if accused Deepak was standing at CBlock Mandir at Jahangirpuri & PW2 prosecutrix (name withheld) was H2 Block - How did accused called PW2 prosecutrix (name withheld) - is doubtful suspicious as manner of such calling is not explained by prosecution and such fact of alleged calling of PW2 prosecutrix (name withheld) by the accused Deepak from H2 Block of Jahangir Puri to C Block Mandir was not stated by any witness in this case. How did accused took PW2 prosecutrix (name withheld) from H2 Block of 170 of 202 171 FIR No. 50/10 PS - Jahangir Puri Jahangirpuri or from CBlock Mandir to Swaroop Nagar - is also doubtful / suspicious as it was also not stated / explained by any witness in this case. Was it on foot, by car, by cycle or by scooter / motor cycle or by bus / auto /taxi. Place from where accused took prosecutrix (name withheld) is also doubtful in this case. As per statement under Section 161 and under Section 164 Cr. PC, PW2 prosecutrix (name withheld) stated that she was taken away by accused from front of her house but before the Court she deposed that accused took her away from C Block Mandir. Time at which accused took Prosecutrix (name withheld) is also doubtful in this case. It is not stated by any witness in this case as to what time PW2 prosecutrix (name withheld) was taken away by accused from front of her house / C Block Mandir. When PW4 Smt. Krishna came back home at 6 pm, she reportedly found PW2 prosecutrix (name withheld) missing from her home & for 2 days, she did not report such missing person to police. It is unbelievable. However, when PW4 Smt. Krishna allegedly learnt at 6 pm from other children of Mr. Roop Singh [i.e. 3 brothers and one sister of PW2 prosecutrix (name withheld)] that accused took away PW2 prosecutrix (name withheld), neither she nor Mrs. Amrita nor her husband ever called on mobile phone of Deepak on 171 of 202 172 FIR No. 50/10 PS - Jahangir Puri February 5 or February 6 or February 7 or February 08, 2010 though they kept on searching PW2 prosecutrix (name withheld) during such days & as per their story, even Deepak was missing for those days and they also did not report missing persons Deepak to police during such time. It is unbelievable. It is not the case of the prosecution that the accused Deepak had not mobile phone with him or that they were not aware of his mobile phone number. All this is really unnatural & Unbelievable. It was not worthly of credence. In fact, such story does not inspire confidence in prosecution case.
I have carefully perused and analysed the evidence on record.
The testimony of PW2 - Prosecutrix has been reproduced, discussed and analysed hereinbefore. At the cost of repetition, the testimony of PW2 - Prosecutrix has been found to be clear, natural, cogent, convincing and inspiring confidence. There is nothing in her statement to suggest that she had any animus against the accused to falsely implicate him in the case.
172 of 202 173 FIR No. 50/10 PS - Jahangir Puri At the cost of repetition, PW2 prosecutrix during her examinationinchief has specifically deposed which is reproduced and reads as under : Accused now present in Court (correctly identified) is my Chacha. On 05/02/2010, he was standing at Sai Baba Mandir at C Block, Jahangir Puri. I was peeling off cholia outside my house. Accused called me to the Mandir. I went to the Mandir as asked by the accused. From there, accused took me to a room in Swaroop Nagar. I requested accused to leave me at my house as it was night time but accused refused. Accused closed the door of the room and removed my underwear. He also removed his underwear. Then he lied down over me. Thereafter, he put his urinating organ in my urinating part. When I felt pain and cried, he pressed my mouth with his hand. Thereafter, accused asked me to hold his penis and shake the same. Accused had also slapped me and kept me in the room the whole night.
(Underlined by me) On analysing the entire testimony of PW2 - Prosecutrix, it transpires that she has described the scenario implicating the accused to be the author of the crime, of the committal of the sexual assault upon her. Accused has failed to elicit any material or relevant discrepancies or inconsistencies despite her searching crossexamination. The core facts about the committal of crime by the accused have remained intact.
173 of 202 174 FIR No. 50/10 PS - Jahangir Puri So far as the plea raised by the Learned counsel for accused that, "in statement under Section 161 and under Section 164 Cr. PC, PW2 prosecutrix (name withheld) stated that she was peeling choliya in front of her house in H2 Block of Jahangir Puri (when the commission of offence began) and from there the accused Deepak took her away to a room at Swaroop Nagar but before the court, she deposed that the accused Deepak was standing at C Block Mandir at Jahangir Puri & that the accused Deepak called her there and from there the accused took her away to a room at Swaroop Nagar. How did accused called PW2 prosecutrix (name withheld) from H2 Block of Jahangir Puri to CBlock Mandir - is doubtful / suspicious. Now, if accused Deepak was standing at CBlock Mandir at Jahangirpuri & PW2 prosecutrix (name withheld) was H2 Block - How did accused called PW2 prosecutrix (name withheld) - is doubtful suspicious as manner of such calling is not explained by prosecution and such fact of alleged calling of prosecutrix (name withheld) by the accused Deepak from H2 Block of Jahangir Puri to CBlock Mandir was not stated by any witness in this case. How did accused took PW2 prosecutrix (name withheld) 174 of 202 175 FIR No. 50/10 PS - Jahangir Puri from H2 Block of Jahangirpuri or from CBlock Mandir to Swaroop Nagar - is also doubtful / suspicious as it was also not stated / explained by any witness in this case. Was it on foot, by car, by cycle or by scooter / motor cycle or by bus / auto /taxi. Place from where accused took prosecutrix (name withheld) is also doubtful in this case. As per statement under Section 161 and under Section 164 Cr. PC, PW2 Prosecutrix (name withheld) stated that she was taken away by accused from front of her house but before the Court she deposed that accused took her away from C Block Mandir. Time at which accused took prosecutrix (name withheld) is also doubtful in this case. It is not stated by any witness in this case as to what time PW2 Prosecutrix was taken away by accused from front of her house / C Block Mandir" is concerned, it is evident from the record that during the cross examination of PW2 Prosecutrix the said accused did not voice his concern or raised any apprehension on the aspects regarding which the plea has been raised. She was the only competent witness who would have been fully capable of explaining correctly the factual situation. For such failure accused is to blame himself and none else.
175 of 202 176 FIR No. 50/10 PS - Jahangir Puri At the cost of repetition, in case 'Mahavir Singh Vs. State of Haryana', (2014) 6 SCC 716, the Hon'ble Supreme Court has observed that it is settled legal proposition that in case the question is not put to the witness in crossexamination who could furnish explanation on a particular issue, the correctness or legality of the said fact/issue could not be raised.
Moreover, if in the estimation of the Learned Counsel for the accused, in the version of said PW, there were material improvements and embellishments on the aspects regarding which the plea has been raised, why the said PW was not got confronted with during the course of her crossexamination as provided u/s 145 of The Indian Evidence Act 1872.
Section 145 Indian Evidence Act, 1872 is reproduced and reads as under :
145. Crossexamination as to previous statements in writing. A witness may be crossexamined as to previous statements made by him in writing or reduced into writing, and relevant to matters in question, without such writing being shown to him, or being proved; but, if it is intended to contradict him by the writing, his attention must, 176 of 202 177 FIR No. 50/10 PS - Jahangir Puri before the writing can be proved, be called to those parts of it which are to be used for the purpose of contradicting him.
Moreover, a witness cannot be expected to possess a photographic memory and to recall the details of an incident. It is not as if a video tape is replayed on the mental screen. There are bound to be some discrepancies in the narration of certain witnesses when they speak out details. The corroboration of evidence with mathematical niceties cannot be expected in criminal cases. The power of observation, retention and reproduction differs with individuals.
In case A. Shankar Vs. State of Karnataka, 2011 VII AD (SC) 37, the Hon'ble Supreme Court has held : "....... Exaggerations per se do not render the evidence brittle. But it can be one of the factors to test the credibility of the prosecution version, when the entire evidence is put in a crucible for being tested on the touchstone of credibility. Therefore, mere marginal variations in the statements of a witness cannot be dubbed as improvements as the same may be elaborations of the statement made by the witness earlier.
Irrelevant details which do not in any way corrode the 177 of 202 178 FIR No. 50/10 PS - Jahangir Puri credibility of a witness cannot be labelled as omission or contradictions.....".
Even the honest and truthful witness may differ in some details unrelated to the main incident because power of observation, retention and reproduction differs with individuals. Discrepancies which do not go to the root of the matter and shake the basic version of the witnesses, therefore cannot be annexed with undue importance. (Ref. 'Mahmood Vs. State', 1991 RLR 287).
The Hon'ble Supreme Court of India in case 'Leela Ram Vs. State of Haryana', (1999) 9 SCC 525 has observed that there are bound to be some discrepancies in the narration of certain witnesses when they speak out details. The corroboration of evidence with mathematical niceties cannot be expected in criminal cases. Minor embellishments, there may be, but variations by reasons therefore should not render the evidence of eye witnesses unbelievable.
178 of 202 179 FIR No. 50/10 PS - Jahangir Puri The Hon'ble Supreme Court in 'Bharwada Bhoginbhai Hirjibhai Vs. State of Gujrat' (1983) 3 SCC 217, has held much importance cannot be attached to minor discrepancies for the reasons :
1) By and large a witness cannot be expected to possess a photographic memory and to recall the details of an incident. It is not as if a video tape is replayed on mental screen; 2) Ordinarily it so happens that a witness is overtaken by events. The witness could not have anticipated the occurrence which so often has an element of surprise. The mental faculties therefore cannot be expected to be attuned to absorb the details.
3) The powers of observation differ from person to person, what one may notice, another may not. An object or movement might emboss its image on one person's mind whereas it might go unnoticed on the part of another.
It is a settled principle of law that every improvement or variation cannot be treated as an attempt to falsely implicate the accused by the witness. The approach of the Court has to be reasonable and practicable. (Reference Ashok Kumar Vs. State of Haryana [(2010) 12 SCC 350] and Shivlal and Another Vs. State of Chhattisgarh [(2011) 9 SCC 561]).
179 of 202 180 FIR No. 50/10 PS - Jahangir Puri The Hon'ble Supreme Court in Para 21 of the case titled Kuria & Anr. Vs. State of Rajasthan 2012 XI AD (S.C.) 376 has held that : "21.............. This Court has repeatedly taken the view that the discrepancies or improvements which do not materially affect the case of the prosecution and are insignificant cannot be made the basis of doubting the case of the prosecution. The Courts may not concentrate too much on such discrepancies or improvements. The purpose is to primarily and clearly sift the chaff from the grain and find out the truth from the testimony of the witnesses. Where it does not affect the core of the prosecution case, such discrepancy should not be attached undue significance. The normal course of human conduct would be that while narrating a particular incident, there may occur minor discrepancies. Such discrepancies may even in Law render credential to the depositions. The improvements or variations must essentially relate to the material particulars of the prosecution case. The alleged improvements and variations must be shown with respect to material particulars of the case and the occurrence. Every such improvement, not directly related to the occurrence is not a ground to doubt the testimony of a witness. The credibility of a definite circumstance of the prosecution case cannot be weakened with reference to such minor or insignificant improvements. Reference in this regard can be made to the judgments of this Court in Kathi Bharat Vajsur and Another Vs. State of Gujrat [(2010) 5 SCC 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].
180 of 202 181 FIR No. 50/10 PS - Jahangir Puri So far as the plea raised by the Learned counsel for accused that, "When PW4 Smt. Krishna came back home at 6 pm, she reportedly found PW2 prosecutrix (name withheld) missing from her home & for 2 days, she did not report such missing person to police. It is unbelievable. However, when PW4 Smt. Krishna allegedly learnt at 6 pm from other children of Mr. Roop Singh [i.e. 3 brothers and one sister of PW2 prosecutrix (name withheld)] that accused took away PW2 prosecutrix (name withheld), neither she nor Mrs. Amrita nor her husband ever called on mobile phone of Deepak on February 5 or February 6 or February 7 or February 08, 2010 though they kept on searching PW2 prosecutrix (name withheld) during such days & as per their story, even Deepak was missing for those days and they also did not report missing persons Deepak to police during such time. It is unbelievable" is concerned, it is evident from the record that at the time of crossexamination of PW6 Smt. Amrita and PW15 Bhoop Singh who were not crossexamined despite grant of opportunity and during the crossexamination of PW4 Smt. Krishna and PW8 Mr. Nirmal, the said accused did not voice his concern or raised any apprehension on the 181 of 202 182 FIR No. 50/10 PS - Jahangir Puri aspects regarding which the plea has been raised. They were the only competent witnesses who would have been fully capable of explaining correctly the factual situation. For such failure accused is to blame himself and none else.
At the cost of repetition, in case 'Mahavir Singh Vs. State of Haryana', (2014) 6 SCC 716, the Hon'ble Supreme Court has observed that it is settled legal proposition that in case the question is not put to the witness in crossexamination who could furnish explanation on a particular issue, the correctness or legality of the said fact/issue could not be raised.
In the circumstances, there is no substances in the plea so raised by the Learned counsel for accused.
33. Learned Counsel for accused submitted that assuming that PW4 Smt. Krishna went to her job at 8 am and she came back home at 6 pm, one can say that the accused Deepak took away PW2 prosecutrix (name withheld) some time between 8 am to 6 pm ( as the prosecution 182 of 202 183 FIR No. 50/10 PS - Jahangir Puri had failed to prove that she had gone or not gone to her school on that date of alleged occurrence), then PW2 prosecutrix (name withheld) must have required & eaten some snacks or some foods atleast between 6 pm to late night when she alleged to have been raped. PW2 prosecutrix (name withheld) had stated in her statement when it was very late at night, alleged rape took place. Now what happened from 6 pm to very late in night. Prosecutrix (name withheld) aged 10 years did not ask for any food from 6 Pm to very late at night. Did they had dinner - snacks during such time is not explained. If they went out for food, PW2 prosecutrix (name withheld) could have escaped & gone back home from there. This is how one can clearly trace that PW2 prosecutrix (name withheld) was a tutored witness at the instance of PW4 Smt. Krishna who had sold mother of PW2 prosecutrix (name withheld) on same day at 11 am as reflected from the connected case. Thus, PW4 Smt. Krishna is an unreliable witness. She performed marriage or her son Roop Singh with Bala aged 12 years illegally, Then Mother of accused Deepak left away his father Mr. Dina Nath & PW4 Smt. Krishna started living with Sh. Dina Nath. Then, her son Roop Singh abandoned his wife Smt. Bala & 2 years later, PW4 Smt. Krishna illegally married Smt. Bala with the 183 of 202 184 FIR No. 50/10 PS - Jahangir Puri accused Deepak while 1st husband of Mrs. Bala was alive. Even, Deepak's 1st wife abandoned him & PW4 Smt. Krishna married Deepak Again during subsistence of his 1st Marriage illegally. Tested on the touchstone of aforesaid legal premises, perversity of approach of PW4 Smt. Krishna as regards the accused Deepak can be seen at the very outset.
I have carefully perused and analysed the evidence on record.
The testimonies of PW2 - Prosecutrix and PW4 - Smt. Krishna have been reproduced, discussed and analysed hereinbefore. At the cost of repetition, the testimonies of PW2 - Prosecutrix and PW4
- Smt. Krishna have been found to be clear, natural, cogent, convincing and inspiring confidence. There is also nothing in their statements to suggest that they had any animus against the accused to falsely implicate him in the case.
184 of 202 185 FIR No. 50/10 PS - Jahangir Puri So far as the plea raised by the Learned counsel for accused that, "assuming that PW4 Smt. Krishna went to her job at 8 am and she came back home at 6 pm, one can say that the accused Deepak took away PW2 prosecutrix (name withheld) some time between 8 am to 6 pm ( as the prosecution had failed to prove that she had gone or not gone to her school on that date of alleged occurrence), then PW2 prosecutrix (name withheld) must have required & eaten some snacks or some foods atleast between 6 pm to late night when she alleged to have been raped. PW2 prosecutrix (name withheld) had stated in her statement when it was very late at night, alleged rape took place. Now what happened from 6 pm to very late in night. Prosecutrix (name withheld) aged 10 years did not ask for any food from 6 Pm to very late at night. Did they had dinner - snacks during such time is not explained. If they went out for food, PW2 prosecutrix (name withheld) could have escaped & gone back home from there" is concerned, it is evident from the record that during the crossexamination of PW2 prosecutrix (name withheld) the said accused did not voice his concern or raised any apprehension on the aspects regarding which the plea has been raised. She was the only competent witness who would have been fully capable 185 of 202 186 FIR No. 50/10 PS - Jahangir Puri of explaining correctly the factual situation. For such failure accused is to blame himself and none else.
At the cost of repetition, in case 'Mahavir Singh Vs. State of Haryana', (2014) 6 SCC 716, the Hon'ble Supreme Court has observed that it is settled legal proposition that in case the question is not put to the witness in crossexamination who could furnish explanation on a particular issue, the correctness or legality of the said fact/issue could not be raised.
As far as the plea raised by the Learned Counsel for the accused that "PW2 prosecutrix (name withheld) was a tutored witness at the instance of PW4 Smt. Krishna" is concerned, it is found to have no substance as the testimony of PW2 - Prosecutrix has been reproduced, discussed and analysed hereinbefore. At the cost of repetition, the testimony of PW2 - Prosecutrix has been found to be clear, natural, cogent, convincing and inspiring confidence. There is nothing in her statement to suggest that she had any animus against the accused to falsely implicate him in the case. Moreover, the said Theory 186 of 202 187 FIR No. 50/10 PS - Jahangir Puri propounded by the Learned Counsel for the accused that, "PW2 - Prosecutrix (name withheld) was a tutored witness at the instance of PW4 - Smt. Krishna" has not at all been made probable much established by any cogent evidence. Nor the said theory so propounded was suggested to PW4 - Smt. Krishna during the entire course of her incisive and lengthy crossexamination. Nor even a single word regarding the said theory so propounded, was uttered by the accused during his statement recorded u/s 313 Cr.P.C.
As regards the plea raised by the Learned Counsel for the accused that, "PW4 Smt. Krishna had sold mother of PW2 prosecutrix (name withheld) on same day at 11.00 AM as reflected from the connected case (FIR No. 63/10, PS Jahangir Puri)" is concerned, since the connected case bearing FIR No. 63/10, PS Jahangir Puri, titled State Vs. Deepak @ Deep Chand is being dealt with separately on its own merit, therefore, no discussion in the present case is called for on the plea so raised, in the interest of justice.
187 of 202 188 FIR No. 50/10 PS - Jahangir Puri So far as the plea raised by the Learned counsel for accused that, "PW4 Smt. Krishna is an unreliable witness. She performed marriage or her son Roop Singh with Bala aged 12 years illegally, Then Mother of accused Deepak left away his father Mr. Dina Nath & PW4 Smt. Krishna started living with Sh. Dina Nath. Then, her son Roop Singh abandoned his wife Smt. Bala & 2 years later, PW4 Smt. Krishna illegally married Smt. Bala with the accused Deepak while 1st husband of Mrs. Bala was alive. Even, Deepak's 1st wife abandoned him & PW4 Smt. Krishna married Deepak again during subsistence of his 1st Marriage illegally" is concerned, it is evident from the record that during the crossexamination of PW4 Smt. Krishna, the accused did not voice his concern or raised any apprehension on the aspect regarding which plea has been raised. She was the only competent witness who would have been fully capable of explaining correctly the factual situation. For such failure accused is to blame himself and none else.
At the cost of repetition, in case 'Mahavir Singh Vs. State of Haryana', (2014) 6 SCC 716, the Hon'ble Supreme Court has 188 of 202 189 FIR No. 50/10 PS - Jahangir Puri observed that it is settled legal proposition that in case the question is not put to the witness in crossexamination who could furnish explanation on a particular issue, the correctness or legality of the said fact/issue could not be raised.
Moreover, PW4 - Smt. Krishna during her examination inchief has specifically deposed that which is reproduced and reads as under: "I have three sons and a daughter. All are married. My elder son Roop Singh had got married with Bala. He has three sons and two daughters. Roop Singh became mentally imbalanced and left the house about four years ago and did not return back. Accused Deepak @ Deep Chand, now present in Court, is the son of my Dever Dina Nath. Since my son Roop Singh had left the house, I married my daughterin law Bala with accused Deepak @ Deep Chand. Bala and her children started residing with accused Deep Chand."
In the circumstances, there is no substances in the plea so raised by the Learned counsel for accused.
34. Learned Counsel for accused submitted that two material 189 of 202 190 FIR No. 50/10 PS - Jahangir Puri witnesses, namely Mrs. Bala @ Rekha & Mr. Mahinder had been knowingly withheld by the prosecution in this case, from the court. Learned counsel further submitted that the statements of the above two witnesses under Section 161, cannot be considered at all benefiting the prosecution. The dropping off the witness namely Bala is for the reason that she has turned hostile in the case (FIR NO. 63 of 2010).
I have carefully perused and analysed the evidence on record.
So far as the plea raised by the Learned counsel for accused that, "two material witnesses, namely Mrs. Bala @ Rekha & Mr. Mahinder had been knowingly withheld by the prosecution in this case, from this court. The dropping off the witness namely Bala is for the reason that she has turned hostile in the case (FIR NO. 63 of 2010)" is concerned, with due respect, it appears that the Learned Counsel for the accused has either misread the record or has not gone through the record of the case. As regards nonexamination of PW Bala is concerned, it is evident from the ordersheet dated 07.03.2013 that PW Bala was present 190 of 202 191 FIR No. 50/10 PS - Jahangir Puri in the court and was dropped by the Learned. Addl. PP as her no statement was recorded as she joined the investigation in the later stages and her no role came to be revealed during the course of investigation. As regards nonexamination of PW Mahender is concerned, it is noticed from the ordersheet dated 13.12.2013 that due to his untraceability he could not be examined as a witness in the court and the statement of Process Server Constable Naveen was also recorded as CW1 to this effect.
Moreover, it is also evident from the record that during the crossexamination of PW20 SI Sushila Rana, IO, the accused did not voice his concern or raised any apprehension regarding the non examination of witnesses Bala and Mahender. In such a situation the accused cannot be heard saying that since the most material witnesses were withheld by the prosecution, therefore, adverse inference should be drawn against the prosecution. If, for the accused, Bala and Mahender were very material witnesses, they could have been produced and examined by the accused in his defence, but it was not done so.
191 of 202 192 FIR No. 50/10 PS - Jahangir Puri In case 'Narain Singh Vs. State' 2013 I AD (DELHI) 685, the Hon'ble Delhi High Court after referring to the cases, 'Pal Singh Vs. State of U.P.' (1979) 4 SCC 345; 'State of U.P. Vs. Anil Singh' AIR 1988 SC 1998 and 'Krishna Mochi Vs. State of Bihar' 2002 IV AD (S.C.) 45 held that, once it is held that the prosecution evidence is reliable and trustworthy and proves the offence, failure to examine other witnesses is not fatal. Nonexamination of further witnesses does not affect the credibility of the witnesses relied upon. It is quality of the evidence and not the number of witnesses that matters.
It is well settled in law that nonexamination of the material witness is not a mathematical formula for discarding the weight of the testimony available on record howsoever natural, trustworthy and convincing it may be (Ref. State of H.P. Vs. Gian Chand, (2001) 6 SCC 71).
In case Takhaji Hiraji Vs Thakore Kubersing Chamansing, 2001 IV AD (S.C.) 393, the Hon'ble Supreme Court has 192 of 202 193 FIR No. 50/10 PS - Jahangir Puri held that : ".....If the witnesses already examined are reliable and the testimony coming from their mouth is unimpeachable the Court can safely act upon it uninfluenced by the factum of nonexamination of other witnesses."
In the circumstances, there is no substance in the plea so raised by the Learned Counsel for the accused.
35. In view of above and in the circumstances, prosecution has thus categorically proved beyond shadows of all reasonable doubts that on 05/02/2010, at about 6:00 p.m., accused Deepak @ Deep Chand kidnapped PW2 - prosecutrix, his step daughter, aged about 10 years (to be exact 09 years, 10 months and 12 days), out of keeping of lawful guardianship, for an immoral or unlawful purpose and that after kidnapping, he wrongfully confined PW2 prosecutrix at House No. 1144, Gali No. 2, Khadda Colony, Swaroop Nagar, Delhi and thereafter he forcibly committed rape upon the prosecutrix, without her consent and that he also voluntarily caused hurt to the prosecutrix by giving her slap blows. However, prosecution has failed to prove that accused 193 of 202 194 FIR No. 50/10 PS - Jahangir Puri Deepak @ Deep Chand also criminally intimidated the prosecutrix to kill her in case she reported the matter to police.
I accordingly hold accused Deepak @ Deep Chand guilty for the offences punishable u/s 363/342/376(2)(f)/323 IPC and convict him thereunder. However, accused Deepak @ Deep Chand is acquitted for the offence punishable u/s 506 IPC.
36. In view of above discussion, I am of the considered opinion that as far as the involvement of the accused Deepak @ Deep Chand in the commission of the offences u/s 363/342/376(2)(f)/323 IPC is concerned, the same is sufficiently established by the cogent and reliable evidence and in the ultimate analysis, the prosecution has been able to bring the guilt home to the accused Deepak @ Deep Chand beyond shadows of all reasonable doubts and there is no room for hypothesis, consistent with that of innocence of accused. I, therefore, hold accused Deepak @ Deep Chand guilty for the offences punishable u/s 363/342/376(2)(f)/323 IPC and convict him thereunder. However, accused Deepak @ Deep Chand is acquitted for the offence punishable u/s 506 IPC.
194 of 202 195 FIR No. 50/10 PS - Jahangir Puri Announced in the open Court (MAHESH CHANDER GUPTA) on 4th Day of February, 2016 Additional Sessions Judge Special Fast Track Court (North District), Rohini, Delhi 195 of 202 196 FIR No. 50/10 PS - Jahangir Puri IN THE COURT OF SH. MAHESH CHANDER GUPTA :
ADDITIONAL SESSIONS JUDGE : SPECIAL FAST TRACK COURT: NORTH DISTRICT : ROHINI : DELHI SESSIONS CASE NO. : 27/13 Unique ID No. : 02404R0119972010 State Vs. Deepak @ Deep Chand S/o Sh. Deena Nath R/o Jhuggi No. 555, H2 Block, Jahangir Puri, Delhi.
FIR No. : 50/10 Police Station : Jahangir Puri Under Sections : 323/363/342/376(2)(f)/506 IPC ORDER ON SENTENCE :
1. Vide my separate detailed judgment dated 04.02.2016 accused Deepak @ Deep Chand has been convicted for the offences punishable u/s 363/342/376(2)(f)/323 IPC.
196 of 202 197 FIR No. 50/10 PS - Jahangir Puri
2. Shri Deepak Sharma, Learned Amicus Curiae for the convict Deepak @ Deep Chand submitted that convict Deepak @ Deep Chand is 33 years of age and is fifth class pass. He was doing labour work (majduri) in Jahangir Puri. He further submitted that he was married to Bala, having four children (who was previously the wife of Roop Singh) and he (convict) is also having one son aged about 9 years from his marriage with Bala. He further submitted that his father and mother had died during his childhood and he was brought up by his tau and tai namely Chattar Singh and Trashni Devi. He further submitted that he is having no brother or sister. He further submitted that he is the sole bread earner in the family and is having the responsibility of whole family. He further submitted that he is running in Judicial Custody (JC) since 08.02.2010 and is not involved in any other case and is having clean antecedents and is not a previous convict and his conduct during the trial was very cooperative and he is the victim of the circumstances and prayed for leniency.
3. On the other hand, Shri Ashok Kumar, Learned Addl. PP for State submitted that seeing the gravity of the offences, the convict be 197 of 202 198 FIR No. 50/10 PS - Jahangir Puri dealt with strictly and severest punishment be given to deter him from committing the same offences in future and no leniency be shown to him.
4. I have heard the Learned Addl. PP for the State and the Learned Counsel for the convict Deepak @ Deep Chand on the quantum of sentence at length. That on 05/02/2010, at about 6:00 p.m., convict Deepak @ Deep Chand kidnapped PW2 - Prosecutrix, his step daughter, aged about 10 years (to be exact 09 years, 10 months and 12 days), out of keeping of lawful guardianship, for an immoral or unlawful purpose and that after kidnapping, convict wrongfully confined PW2 Prosecutrix at House No. 1144, Gali No. 2, Khadda Colony, Swaroop Nagar, Delhi and thereafter convict forcibly committed rape upon the Prosecutrix, without her consent and that convict also voluntarily caused hurt to the Prosecutrix by giving her slap blows.
5. It has been held by the Hon'ble Apex Court in Sahdev Vs. Jaibar @ Jai Dev & Ors. 2009 V AD (S.C.) 515 that : "After giving due consideration to the facts and circumstances of each case, for deciding just and appropriate sentence to be awarded for an offence, the aggravating and mitigating factors and 198 of 202 199 FIR No. 50/10 PS - Jahangir Puri circumstances in which a crime has been committed are to be delicately balanced on the basis of really relevant circumstances in a dispassionate manner by the Court. Such act of balancing is indeed a difficult task".
6. It has been held in 'State of Karnataka Vs. Murlidhar', 2009 IV AD (S.C.) 1 that : "The object should be to protect the society and to deter the criminal in achieving the avowed object of law by imposing appropriate sentence. It is expected that the Courts would operate the sentencing system so as to impose such sentence which reflects the conscience of the society and the sentencing process has to be stern where it should be. The court will be failing in its duty if appropriate punishment is not awarded for a crime which has been committed not only against the individual victim but also against the society to which the criminal and victim belong. The punishment to be awarded for a crime must not be irrelevant but it should conform to and be consistent with the atrocity and brutality with which the crime has been perpetrated, the enormity of the crime warranting public abhorrence and it should "respond to the society's cry for justice against the criminal".
7. In 'Mulla & Anr. Vs. State of Uttar Pradesh, (2010) 3 SCC 508, after considering various earlier decision, the Hon'ble Supreme Court held as under : "It is settled legal position that the punishment must fit the crime. It is the duty of the Court to impose proper punishment 199 of 202 200 FIR No. 50/10 PS - Jahangir Puri depending upon the degree of criminality and desirability to impose such punishment. As a measure of social necessity and also as a means of deterring other potential offenders, the sentence should be appropriate be fitting the crime".
8. In 'Pushpanjali Sahu Vs. State of Orissa', (2012) 9 SCC 705 in para 12, the Hon'ble Supreme Court has held as under : "Sexual violence is not only an unlawful invasion of the right of privacy and sanctity of a woman but also a serious blow to her honour. It leaves a traumatic and humiliating impression on her conscienceoffending her selfesteem and dignity. Rape is not only a crime against the person of a woman, but a crime against the entire society. It indelibly leaves a scar on the most cherished possession of a woman i.e. her dignity, honour reputation and not the least her chastity. It destroys the entire psychology of a woman and pushes her into deep emotional crisis. It is crime against basic human rights, and is also violative of the victim's most cherished of the fundamental rights, namely the right of life contained in Article 21 of the Constitution. The Courts are, therefore, expected to deal with cases of sexual crime against women with utmost sensitivity. Such cases need to be dealt with sternly and severely" (Para 12).
9. In Madan Gopal Kakkad Vs. Naval Dubey and another (1992) 3 SCC 204, the Hon'ble Supreme Court has observed as follows : "...though all sexual assaults on female children are not 200 of 202 201 FIR No. 50/10 PS - Jahangir Puri reported and do not come to light yet there is an alarming and shocking increase of sexual offences committed on children. This is due to the reasons that children are ignorant of the act of rape and are not able to offer resistance and becomes easy prey for lusty brutes who display the unscrupulous, deceitful and insidious art of luring female children and young girls. Therefore, such offenders who are menace to the civilized society should be mercilessly and inexorably punished in the severest terms."
10. Having regard to all the facts and circumstances of the case coupled with the submissions made on behalf of the convict and after delicately balancing and giving due consideration to the facts and circumstances, the aggravating and mitigating factors and circumstances in which the offences had been committed, I am of the considered opinion that the ends of justice can be met by sentencing convict Deepak @ Deep Chand to undergo Rigorous Imprisonment for a period of seven years and to pay a fine of Rs. 8,000/ in default thereof to further undergo Rigorous Imprisonment for a period of one year u/s 363 IPC. He is further sentenced to undergo Rigorous Imprisonment for a period of one year and to pay a fine of Rs. 1,000/ in default thereof to further undergo Rigorous Imprisonment for a period of three months u/s 342 IPC. He is further sentenced to undergo Rigorous Imprisonment for a 201 of 202 202 FIR No. 50/10 PS - Jahangir Puri period of ten years and to pay a fine of Rs. 20,000/ in default thereof to further undergo Rigorous Imprisonment for a period of two years u/s 376(2)(f) IPC. He is further sentenced to undergo Rigorous Imprisonment for a period of one year and to pay a fine of Rs. 1,000/ in default thereof to further undergo Rigorous Imprisonment for a period of three months u/s 323 IPC. All the substantive sentences shall run concurrently. The period already undergone by the convict Deepak @ Deep Chand during the inquiry/ investigation/trial of this case shall be set off under section 428 Cr.P.C.
A copy of judgment as well as that of order on sentence be given to the convict free of costs.
Announced in the open Court (MAHESH CHANDER GUPTA) on 6th Day of February, 2016 Additional Sessions Judge Special Fast Track Court (North District), Rohini, Delhi 202 of 202