Delhi District Court
State vs . Ramesh @ Peela on 27 January, 2014
1
FIR No. 379/10
PS - Vijay Vihar
IN THE COURT OF SH. MAHESH CHANDER GUPTA :
ADDITIONAL SESSIONS JUDGE : SPECIAL FAST TRACK
COURT : NORTHWEST DISTRICT : ROHINI : DELHI
SESSIONS CASE NO. : 105/13
Unique ID No. : 02404R0220392012
State Vs. Ramesh @ Peela
S/o Sh. Chander Singh
R/o Village Karotha,
District - Rohtak,
Haryana.
FIR No. : 379/10
Police Station : Vijay Vihar
Under Sections : 376/109/506/34 IPC & 3/4 ITP Act
Date of committal to session Court : 29/05/2012
Date on which judgment reserved : 21/01/2014
Date on which judgment announced : 27/01/2014
J U D G M E N T
1. Briefly stated the case of the prosecution as unfolded by the report under section 173 Cr.P.C. is as under : 1 of 55 2 FIR No. 379/10 PS - Vijay Vihar That on 31/10/2010 on receipt of DD No. 23B SI Ramesh Thakur with HC Baljeet, Constable Parmod and lady Constable Santosh reached at the spot where it was revealed that the prosecutrix (name withheld being a case u/s 376 IPC) D/o Madan R/o B66, Sardar Colony, Sector - 23, Rohini has been taken by PCR Van to Police Station Vijay Vihar. SI Ramesh Thakur inquired from many public persons present there about the incident but nothing could be known. Thereafter, SI Ramesh Thakur with the said Constables came at the Police Station where prosecutrix met him and made the statement which is to the effect that, she is living at Village Naya Bazar, Post and Tehsil Ghosi, Distt. Mau, U.P. but presently she is living at B66, Sardar Colony, Sector - 23, Rohini at the house of Rani for the last one month. She knows Rani through one lady named Shakuntala who is her known. In May, 2010 Rani had got her (prosecutrix) married to her (Rani) known person named Vijender who lives in village Igli, Noida, U.P. Her husband used to keep her harassed (Tung Rakhta Tha) and used to drink liquor and was not paying the maintenance expenses and during this time her father came to meet her and she told about harassment of her husband Vijender and other incidents (Anya Batein) of Vijender on which her father left 2 of 55 3 FIR No. 379/10 PS - Vijay Vihar her in the house of her Mama/Jaith at Sector 1, Rohini, Avantika so that the strained relations between her and Vijender may be lessened (Vijender Se Meri Duriya Kam Ho Jaen). When she was living at Avantika and was not doing any work and due to less space in the house, the tension started remain in the house (Jo Mai Avantika Mei Reh Rahi Thi Tatha Koi Kaam Nahi Karti Thi Va Makaan Mei Kam Jagah Hone Ke Karan Unke Ghar Mei Kalah Rehne Lagi). On seeing the family circumstances her Mama/Jaith, she went to Rani, of her known Shakuntla, living at B66, Sardar Colony, Sector 23, Rohini and told all about the circumstances at Avantika to Rani. Rani told to her to live with her and she started living with Rani. Rani making use of her helplessness (Majboori) started getting her sexually exploited without her (Prosecutrix) consent from the persons visiting her (Rani) and said, "if she told to any one then it will not be fine for her" (Tere Liye Thik Nahi Hoga). The persons who used to do sexual intercourse with her from them Rani used to take money (Maine Apne Mama Jeth Ki Parivarik Halat Ko Dekhte Huve Mai Apni Jaankaar Shakuntala Ki Jaan Ne Wali Rani Ke Paas, B66, Sardar Colony, Sector - 23, Rohini Chali Gai. Jo Maine Avantika Wali Sari Baat Rani Ko Batlai. Jo Rani Ne Kaha Ki Aap 3 of 55 4 FIR No. 379/10 PS - Vijay Vihar Mere Sath Raho Jo Mai Rani Ke Paas Rehne Lagi. Jo Rani Ne Mere Se Meri Majburi Ka Faeda Uthate Huve Apne Paas Aane Wale Logon Se Meri Marzi Ke Khilaaf Sambhog Karana Shuru Kar Diya Tatha Kaha Ki Kisi Ko Batlaya To Tere Liye Thik Nahi Hoga. Jo Log Mere Se Sambhog Karte The, Rani Unse Paise Vasulti Thi). One day, one known of Rani whose name came to be known as Peela also forcibly committed sexual intercourse with her (Jo Ek Din Rani Ka Ek Jaankaar Jiska Naam Peela Malum Hua Ne Bhi Mere Saath Zabardasti Sambog Kiya). Today on 31/10/2010 at about 1:00 p.m. Rani while threatening her said that "today Peela will come and do not refuse for making the physical relations with him as when Peela had previously done sexual intercourse with her at that time he was seeing that she had not satisfied him and do not do any previous like activity" (Jo Aaj Dinank 31/10/2010 Ko Samay Kareeb Ek Baje Din Rani Ne Mujhe Dhamki Dete Huve Kaha Ki Aaj Peela Aaega, Tu Use Sharirik Sambandh Banane Ke Liye Inkaar Mat Karna Kyonki Jab Peele Ne Pehle Tere Saath Galat Kaam Sambhog Kiya Tha Us Samay Veh Keh Raha Tha Ki Tune Usko Sahi Santusth Nahi Kiya Tha Jo Aaj Pehle Jaisi Harkat Mat Karna). Today on 31/10/2010, finding an opportunity after coming out of the house and by going to the Pradhan 4 of 55 5 FIR No. 379/10 PS - Vijay Vihar of the colony had told him all about the incidents, on which he made a call at number 100. Rani after threatening her has got done prostitution work from her and the persons who had committed sexual intercourse with her without her consent and Rani who had got done the Ghinona Kaam (worst deed) from her, legal action be taken against them. She can identify Peela, relative of Rani and other persons who had committed Galat Kaam with her. She has heard her statement and is correct. From the DD Entry and from the statement on finding that offences u/s 376/506/109/34 IPC and u/s 3 & 4 I.T.P Act, the case was got registered and the investigation was handed over to Inspector S. K. Jha. During the course of investigation medical examination of prosecutrix was got conducted from BSA Hospital vide MLC No. 41/10 and the sealed exhibits handed over by the doctor after her medical examination were taken into Police possession. Accused Rani was arrested and her disclosure statement was recorded. Site Plan was prepared, statements of other witnesses were recorded. Accused Ramesh @ Peela was evading arrest, NBWs were obtained against him and on his arrest the supplementary challan will be filed. The sealed exhibits were sent to FSL.
5 of 55 6 FIR No. 379/10 PS - Vijay Vihar Upon completion of the necessary further investigation challan u/s 376/506/109/34 IPC and u/s 3 & 4 I.T.P Act was prepared against accused Rani and was sent to the Court for trial.
2. Accused Rani was put on trial and after conclusion of trial she was acquitted on the charges u/s 109/376/506 IPC and u/s 3 & 4 I.T.P. Act by the Court of Shri Sanjeev Kumar, Learned ASJ01 (Outer), Rohini, Delhi vide judgment dated 02/02/2012.
3. During the course of further investigation, accused Ramesh @ Peela was declared a Proclaimed Offender (PO) on 31/01/2012 by the Court of Shri S. K. Sethi, Learned MM, Rohini, Delhi. However, on 28/07/2012, accused Ramesh @ Peela was arrested u/s 41.1 (C) and after permission of the Court, he was interrogated, arrested and his medical examination was got conducted from BSA Hospital and after his medical examination, the sealed exhibits handed over by the Doctor were taken into Police possession and were sent to FSL.
6 of 55 7 FIR No. 379/10 PS - Vijay Vihar Upon completion of the necessary further investigation supplementary challan for the offences u/s 376/506/109/34 IPC was prepared against accused Ramesh @ Peela and was sent to the Court for trial.
4. Since the offence u/s 376 IPC is exclusively triable by the court of Session, therefore, after compliance of Section 207 Cr.P.C., the case against accused Ramesh @ Peela was committed to the Court of Session u/s 209 Cr.P.C.
5. Upon committal of the case to the Court of Session, after hearing on charge, prima facie a case u/s 376 IPC was made out against the accused Ramesh @ Peela. Charge was framed according which was read over and explained to the accused to which he pleaded not guilty and claimed trial.
6. In support of its case prosecution has produced and examined 18 witnesses. PW1 HC Hukminder, PW2 HC Ram Singh, PW3 HC Rajender Singh, PW4 Sh. Ashok Singh, PW5 HC Rakesh, 7 of 55 8 FIR No. 379/10 PS - Vijay Vihar PW6 Constable Velayudhan, PW7 Dr. Renu Lalharia, SR Obs. and Gynae, BSA, Hospital, PW8 Dr. Vijay Dhankar, HOD Forensic Medicine BSA Hospital, PW9 Dr. Kuldeep Singh, CMO, BSA Hospital, PW10 - Constable Pawan, PW11 Constable Jitender Kumar, PW12 SI Ramesh Thakur, PW13 ASI Baljeet Singh, PW14 - prosecutrix, PW15 - Constable Santosh, PW16 - Constable Akhilesh Kumar, PW17 - Inspector S. K. Jha, PW18 - Sh. A. K. Srivastava Deputy Director, DNA Unit, FSL, Rohini, Delhi.
7. In brief the witnessography of the prosecution witnesses is as under : PW1 HC Hukminder is the MHC(M) who deposed that on 01/08/2012 he was posted as MHC(M) in PS Vijay Vihar. On that day, IO Inspector S. K. Jha deposited two pullindas and one sample seal in the Malkhana. He made entry at Serial No. 464 of Register No. 19. On 06/08/2012, pullindas were sent to FSL through Constable Jitender vide RC No. 125/21/12 and thereafter he (Constable Jitender) deposited the receipt with him. He has brought the Register No. 19 and 21. The copy of relevant entries in Register No. 19 is Ex. PW1/A and the copy of 8 of 55 9 FIR No. 379/10 PS - Vijay Vihar relevant entries in Register No. 21 is Ex. PW1/B. The sealed pullinda remained intact during his custody.
PW2 HC Ram Singh is the MHC(M) who deposed that on 01/11/2010 he was posted as MHC(M) in PS Vijay Vihar. On that day, IO Inspector S. K. Jha deposited one sealed pullinda and one sample seal in the Malkhana. He made entry at Serial No. 321 of Register No. 19. On 23/05/2011, pullinda was sent to FSL through Constable Subhash vide RC No. 56/21/11 and thereafter he (constable Subhash) deposited the receipt with him. He has brought the Register No. 19 and 21. the copy of relevant entry in Register No. 19 is Ex. PW2/A and the copy of relevant entries in Register No. 21 is Ex. PW2/B. The sealed pullinda remained intact during his custody.
PW3 HC Rajender Singh who deposed that on 28/07/2012 he was posted as Head Constable in PS Neb Sarai. On that day he alongwith HC Rakesh were on patrolling duty and he received the information that accused Ramesh @ Peela S/o Chander Singh R/o Village Karotha, Distt. Rohtak, Haryana who is PO from PS Vijay 9 of 55 10 FIR No. 379/10 PS - Vijay Vihar Vihar is present in his village. Thereafter, they reached at village Karotha and at the instance of the secret informer apprehended accused Ramesh @ Peela present in the Court. He confessed about committal of rape of one lady. He was arrested u/s 41.1 Cr.P.C. vide arrest memo Ex. PW3/A bearing his signature at point 'A'. Thereafter, they came back to Delhi. He recorded DD No. 31B regarding arrival in PS Neb Sarai, copy of which is Ex. PW3/B. He prepared Kalandra Ex. PW3/C, bearing his signature at point 'A'. Accused Ramesh @ Peela was produced in the Court on the same day and was sent to JC. He informed PS Vijay Vihar vide DD No. 11A, copy of which is Ex. PW3/D. PW4 Sh. Ashok Singh who deposed that he is running a grocery shop at A35, Sector23, Rohini, Delhi. He does not remember date, month and year, however, it was about 2 or 2 ½ year ago, prosecutrix (name withheld) came running to his shop and she told him that she is residing with Rani who has brought her (Prosecutrix) from Azamgarh and they are getting wrong deed done from her (Mujhse Galat Kaam Kara Rahe Hai). Rani was residing in B Block in their colony. He had sent threefour ladies at the house of Rani but she was 10 of 55 11 FIR No. 379/10 PS - Vijay Vihar not found present there. Thereafter, he made a phone call at 100 number from his mobile phone but he does not remember the complete mobile number but the mobile number was having 300 in the last. Police came there and he handed over prosecutrix (name withheld) to the Police.
PW5 HC Rakesh who deposed that on 28/07/2012 he was posted at PS Neb Sarai and on that day he alongwith HC Rajender (PW3) were on patrolling duty and HC Rajender received the information that accused Ramesh @ Peela S/o Chander Singh R/o Village Karotha, Distt. Rohtak, Haryana who is PO from PS Vijay Vihar is present in his village. Thereafter, they reached at village Karotha and at the instance of secret informer apprehended accused Ramesh @ Peela, present in the Court. He confessed about committing of rape upon one lady. He was arrested u/s 41.1 Cr.P.C. vide arrest memo already Ex. PW3/A, bearing his (PW5) signature at point 'B'. Thereafter, they came back to Delhi.
PW6 Constable Velayudhan who deposed that on 31/07/2012 he was posted as Constable in PS Vijay Vihar and on that 11 of 55 12 FIR No. 379/10 PS - Vijay Vihar day he alongwith IO Inspector S. K. Jha reached at Rohini Courts and thereafter IO took one day PC Remand of accused Ramesh @ Peela. Thereafter, accused Ramesh @ Peela had pointed out the place of occurrence i.e. B66, 1st Floor, Sardar Colony, Sector23, Rohini vide pointing out memo Ex. PW6/A, bearing his signature at point 'A'. Thereafter, they reached at Anandpur Dham, Karala but nothing could be recovered. Accused Ramesh @ Peela is present in the Court.
PW7 Dr. Renu Lalharia, SR Obs. and Gynae, BSA, Hospital who deposed that on 31/10/2010 at about 8:30 p.m. patient/prosecutrix (name withheld) D/o Madan aged about 25 years was brought to BSA Hospital by Lady Constable Sita Devi for medical examination. Patient was not giving any history of sexual assault. Patient was seen by her but however, patient has refused for her medical examination. She obtained the thumb impression of patient/prosecutrix (name withheld) on MLC at that time. At about 11:45 p.m., the patient was again brought to her for medical examination and at that time patient/prosecutrix (name withheld) had given her consent for her medical examination. Thereafter, she examined the patient and as per 12 of 55 13 FIR No. 379/10 PS - Vijay Vihar her examination, hymen was found torn, no fresh injury was found, her LMP was 29/10/2010, patient mensurating, bleeding coming through OS, Uterus anteverted, normal size bilateral fornix clear. Nail clipping, pubic hair, blood sample, vaginal swab, vaginal smear, cervical swab, cervical smear, under garments of patient were sealed with the seal of hospital and were handed over to the Police. MLC in this regard is Ex. PW7/A which is in her handwriting and bears her signature at points 'A' & 'B'.
PW8 Dr. Vijay Dhankar, HOD Forensic Medicine BSA Hospital who deposed that on 01/08/2012 he examined one Rakesh (be read as Ramesh) @ Peela S/o Chander Singh, Age about 48 years on the request of Inspector S. K. Jha of PS - Vijay Vihar as the patient was referred to him by the CMO on duty. After examination her opined that there was nothing to suggest that patient was not capable of performing sexual intercourse. His detailed report is Ex. PW8/A, bearing his signature at point 'A'.
PW9 Dr. Kuldeep Singh, CMO, BSA Hospital who 13 of 55 14 FIR No. 379/10 PS - Vijay Vihar deposed that on 01/08/2012, he alongwith Dr. Arvind, Junior Resident had examined one Rakesh (be read as Ramesh) @ Peela S/o Chander Singh, Age about 48 years on the request of Inspector S. K. Jha of PS - Vijay Vihar. After examination, patient was referred to SR Surgery and Department of Forensic Medicine for collection of samples and opinion over sexual capability of the patient. The MLC was prepared by Dr. Arvind under his supervision. The MLC is Ex. PW9/A, bearing his signature at point 'A' and bearing the signature of Dr. Arvind at point 'B'.
PW10 Constable Pawan who deposed that on 01/08/2012 he was posted at PS Vijay Vihar and on that day, he took accused Ramesh @ Peela in Ambedkar Hospital for medical examination. He was medically examined in the Hospital and thereafter, Doctor handed over three sealed pullindas which he handed over to the IO and the same were seized vide memo Ex. PW10/A, bearing his (PW10) signature at point 'A'. Accused Ramesh @ Peela present in the Court (correctly identified).
PW11 Constable Jitender Kumar who deposed that on 14 of 55 15 FIR No. 379/10 PS - Vijay Vihar 06/08/2012 he was posted at PS Vijay Vihar and on that day he on the instructions of the IO took two sealed pullindas from MHC(M) for depositing the same at FSL and deposited the same at FSL, Rohini vide RC No. 125/21/12. He deposited the pullindas in the FSL and thereafter he deposited the acknowledgment receipt with MHC(M). The sealed pullindas remained intact during the period it remained in his custody.
PW12 SI Ramesh Thakur is the Investigating Officer (IO) of the case who deposed that on 31/10/2011 he was posted at PS Vijay Vihar. On that day, after receipt of DD No. 23B Ex. PW12/A, he alongwith HC Baljeet, Lady Constable Santosh reached at House No. B66, Sardar Colony, Sector 23, Rohini where they came to know that complainant (name withheld) had been taken to PS Vijay Vihar by PCR Officials. He made spot inquiry but nothing was revealed and thereafter, he alongwith the staff came back to PS Vijay Vihar where he met complainant (name withheld) and he recorded her statement Ex. PW12/B and attested her thumb impression at point 'A', bearing his signature at point 'B'. He prepared rukka Ex. PW/12/C and handed over to Duty Officer for registration of FIR. After registration of FIR, further 15 of 55 16 FIR No. 379/10 PS - Vijay Vihar investigation was handed over to Inspector S. K. Jha.
PW13 ASI Baljeet Singh who deposed that on 31/10/2011 he was posted at PS Vijay Vihar. On that day, IO SI Ramesh Thakur received DD No. 23B and thereafter, he alongwith him and Lady Constable Santosh reached at House No. B66, Sardar Colony, Sector - 23, Rohini where they came to know that complainant/prosecutrix (name withheld) had been taken to PS - Vijay Vihar by the PCR officials. IO SI Ramesh Thakur made spot inquiry but nothing was revealed thereafter, they came back to PS - Vijay Vihar where IO SI Ramesh Thakur met complainant/prosecutrix (name withheld). Thereafter, IO SI Ramesh Thakur recorded her statement. IO SI Ramesh Thakur prepared rukka and handed over the same to DO for registration of FIR. After registration of FIR, the further investigation was handed over to Inspector S. K. Jha.
PW14 Prosecutrix is the victim who deposed regarding the incident and proved her statement made to the Police Ex. PW12/B, bearing her thumb impression at point 'A' and also identified and proved 16 of 55 17 FIR No. 379/10 PS - Vijay Vihar her one panty plus pad collectively Ex. P1.
PW15 - Constable Santosh who deposed that on 31/10/2010 she was posted as Constable in PS Vijay Vihar. On that day, she alongwith SI Ramesh Thakur, HC Baljeet and Constable Pramod reached at the spot i.e. A35, Sardar Colony, Sector23 Rohini where SI Ramesh Thakur made inquiries and they came to know that the prosecutrix has been taken to PS Vijay Vihar by the PCR Van. Thereafter, they came back to Police Station Vijay Vihar where they met the prosecutrix. IO SI Ramesh Thakur had recorded the statement of the prosecutrix and prepared Tehrir and handed over the same to Duty Officer for registration of FIR. After registration of FIR, further investigation was handed over to Inspector S. K. Jha. Prosecutrix was sent to hospital for medical examination through Lady Constable Sita. She alongwith IO reached at House No. B66, Sardar Colony, Sector 23, Rohini and from there accused Rani was arrested.
PW16 - Constable Akhilesh Kumar who deposed that on 30/07/2012 he was posted as Constable in PS Vijay Vihar. On that day, 17 of 55 18 FIR No. 379/10 PS - Vijay Vihar he alongwith Inspector S. K. Jha reached in Rohini Court, Room No. 113. Accused Ramesh @ Peela, present in the Court was produced in the Court and IO after taking the permission from the Learned Metropolitan Magistrate, interrogated him. Accused Ramesh @ Peela was arrested vide arrest memo Ex. PW16/A, his personal search was conducted vide memo Ex. PW16/B, bearing his signature at point 'A'. He made disclosure statement Ex. PW16/C, bearing his signature at point 'A'. Accused was produced before the Learned Metropolitan Magistrate and one day PC remand was taken.
PW17 - Inspector S. K. Jha is also the Investigating Officer (IO) of the case who deposed that on 31/10/2010, he was posted as Inspector Investigation in PS Vijay Vihar. On that day, after registration of FIR, Duty Officer handed over to him a copy of FIR and rukka and investigation was marked to him. Prosecutrix (name withheld) was present in the Police Station and she was produced before him by SI Ramesh Thakur. The prosecutrix (name withheld) was sent to BSA Hospital through W/HC Sita for medical examination. After medical examination W/HC Sita alongwith prosecutrix came back in the Police 18 of 55 19 FIR No. 379/10 PS - Vijay Vihar Station and W/HC Sita handed over to him sealed pullinda containing exhibits which he seized vide memo Ex. PW17/A (the document is earlier Ex. PW5/A during the trial of other accused Rani) bearing his signature at point 'B'. Thereafter, prosecutrix (name withheld) and Lady Constable Santosh reached at the spot i.e. B66, Sardar Colony, Sector 23, Rohini and he prepared the site plan Ex. PW17/B (the document is earlier Ex. PW11/A during the trial of other accused Rani) bearing his signature at point 'A'. Accused Rani was arrested and she made the disclosure statement Ex. PW 17/X (the document is earlier Ex. PW2/C during the trial of other accused Rani) and he prepared the papers regarding her arrest. Thereafter, accused Rani was got medically examined and produced in the Court and was sent to JC. Accused Ramesh @ Peela was absconding and could not be arrested. Case property was sent to FSL and after completing the investigation, charge sheet was filed against accused Rani. Accused Ramesh @ Peela was declared as Proclaimed Offender on 31/01/2012. On 28/07/2012, DD No. 11A, copy of which is Ex. PW3/D was lodged in PS Vijay Vihar that accused Ramesh @ Peela has been arrested by HC Rajender of PS Neb Sarai u/s 41.1 Cr.P.C. On 30/07/2012, accused Ramesh @ Peela was 19 of 55 20 FIR No. 379/10 PS - Vijay Vihar produced in the Court and after taking the permission from the Court, he was arrested vide arrest memo Ex. PW16/A and his personal search was conducted vide memo Ex. PW16/B bearing his signature at point 'B'. He made disclosure statement Ex. PW16/C bearing his signature at point 'B'. He was produced in the Court and was sent to JC for one day. On 31/07/2012, accused Ramesh @ Peela was produced in the Court and one day PC was obtained. Accused pointed out towards place of incident i.e. B66, Sardar Colony, Sector 23, Rohini, 1st floor vide pointing out memo Ex. PW6/A bearing his (PW17) signature at point 'B'. Accused was taken to hospital where he was medically examined and after medical examination, Doctor handed over the sealed pullinda containing the exhibits and same were seized vide memo Ex. PW10/A bearing his (PW17) signature at point 'B'. Nothing was recovered from the house of her sister and the memo Ex. PW17/C bearing his signature at point 'A'. Case property was deposited in the Malkhana. He recorded the statements of the witnesses. Exhibits were sent to FSL and after completing the investigation, challan was prepared and filed in the Court. Accused Ramesh @ Peela is present in the Court.
20 of 55 21 FIR No. 379/10 PS - Vijay Vihar PW18 - Sh. A. K. Srivastava Deputy Director, DNA Unit, FSL, Rohini, Delhi who deposed that on 06/08/2012, two sealed parcels were received in their office in connection with the present case and the same were marked to him for DNA examination. He conducted the DNA examination and gave his report which is Ex. PW18/A bearing his signature at point 'A'. The genotype data of the exhibits Ex. PW18/B, bearing his signature at point 'A'.
The testimonies of the prosecution witnesses shall be dealt with in detail during the course of appreciation of evidence.
8. Statement of accused Ramesh @ Peela was recorded u/s 313 Cr.P.C. wherein he pleaded innocence and false implication. Accused did not opt to lead any defence evidence.
9. Learned Counsel for accused submitted that evidence of PW14 - prosecutrix is suffering from material contradictions and discrepancy and is not believable, trustworthy and reliable one. Even the chief and crossexamination of PW14 - prosecutrix is taken at their face 21 of 55 22 FIR No. 379/10 PS - Vijay Vihar value that does not satisfy the conditions and ingredients for invoking the applicability of the alleged section i.e. 376/506/109/34 IPC. Learned Counsel for accused further submitted that if the evidence of the prosecution is taken at their face value and in entirety then the entire case of Prevention of Immoral Traffic Act is made out against Rani and as well as PW14 - prosecutrix and the entire criminal proceeding is sheer misuse and abuse of process of law and the same has been instituted with oblique and ulterior motive and for collateral purposes as PW14 - prosecutrix has also derived the benefit and advantage/gain by her in collusion and conspiracy with Rani. Learned Counsel for accused further submitted that the entire evidence placed by the prosecution on judicial record will give the exclusive conclusion and inferences that the prosecution has failed to prove and establish its case against the accused beyond reasonable doubt either by direct, indirect or circumstantial evidence and the series of the fact on the basis of which prosecution is resting is not fully proved and established. The entire evidence will give the exclusive conclusion and inferences that the accused is innocent one. Learned Counsel for accused further submitted that no cogent, credible, reliable, trustworthy evidence for coming to the conclusion that there is a 22 of 55 23 FIR No. 379/10 PS - Vijay Vihar ground and material for recording the finding of conviction against the accused. Learned Counsel for accused further submitted that the entire evidence of the prosecution placed on judicial record will give the exclusive conclusion and inferences that no case under the alleged sections is made out against the accused and prayed for the acquittal of accused on the charge levelled against him. Learned Counsel for the accused referred to a case and is reported as 'K. P. Thimmappa Gowda Vs. State of Karnataka', 2011 STPL (Web) 327 SC.
10. While the Learned Addl. PP for the State, on the other hand, submitted that the testimonies of the prosecution witnesses are cogent and consistent and the contradictions and discrepancies as pointed out are minor and not the material one's and do not affect the credibility of the witnesses and the prosecution has proved its case beyond reasonable doubt.
11. I have heard Sh. S. C. Sroai, Learned Addl. PP for the State and Sh. B. L. Madhukar, Learned Counsel for the accused and have also carefully perused the entire record.
23 of 55 24 FIR No. 379/10 PS - Vijay Vihar
12. The charge for the offence punishable u/s 376 IPC against the accused Ramesh @ Peela is that in between May, 2010 and 31/10/2010 at House No. D66, Sardar Colony, Sector - 23, Rohini, Delhi within the jurisdiction of PS - Vijay Vihar, he committed rape upon the prosecutrix (name withheld) D/o Sh. Madan Lal against her wishes and without her consent.
13. It is to be mentioned that as a matter of prudence, in order to avoid any little alteration in the spirit and essence of the depositions of the material witnesses, during the process of appreciation of evidence at some places their part of depositions have been reproduced, in the interest of justice.
AGE OF THE PROSECUTRIX
14. PW14 - prosecutrix in her statement recorded in the Court on 13/03/2013 while giving her particulars has stated her age as 35 years.
Since PW14 - prosecutrix has stated her age as 35 years on 24 of 55 25 FIR No. 379/10 PS - Vijay Vihar 13/03/2013 at the time of recording her evidence/statement and the date of alleged incident is in between May, 2010 and 31/10/2010, on simple arithmetical calculation, the age of the prosecutrix comes to around 32 years as on the date of alleged incident, between May, 2010 and 31/10/2010.
Moreover, the said factum of age of PW14 - prosecutrix has also not been disputed by accused Ramesh @ Peela. Nor any evidence to the contrary has been produced or proved on the record on behalf of the accused.
In the circumstances, it stands proved on record that PW14 - prosecutrix was aged around 32 years as on the date of incident, between May, 2010 and 31/10/2010. MEDICAL EVIDENCE OF THE PROSECUTRIX
15. PW7 Dr. Renu Lalharia, SR Obs. and Gynae, BSA, Hospital has deposed that on 31/10/2010 at about 8:30 p.m. patient/prosecutrix (name withheld) D/o Madan aged about 25 years was brought to BSA Hospital by Lady Constable Sita Devi for medical 25 of 55 26 FIR No. 379/10 PS - Vijay Vihar examination. Patient was not giving any history of sexual assault. Patient was seen by her but however, patient has refused for her medical examination. She obtained the thumb impression of patient/prosecutrix (name withheld) on MLC at that time. At about 11:45 p.m., the patient was again brought to her for medical examination and at that time patient/prosecutrix (name withheld) had given her consent for her medical examination. Thereafter, she examined the patient and as per her examination, hymen was found torn, no fresh injury was found, her LMP was 29/10/2010, patient mensurating, bleeding coming through OS, Uterus anteverted, normal size bilateral fornix clear. Nail clipping, pubic hair, blood sample, vaginal swab, vaginal smear, cervical swab, cervical smear, under garments of patient were sealed with the seal of hospital and were handed over to the Police. MLC in this regard is Ex. PW7/A which is in her handwriting and bears her signature at points 'A' & 'B'.
Despite grant of opportunity, PW7 Dr. Renu Lalharia was not crossexamined on behalf of accused.
As far as finding of no fresh injury on the body of the prosecutrix is concerned, nonfinding of any such injury does not falsify 26 of 55 27 FIR No. 379/10 PS - Vijay Vihar the case of the prosecution which is otherwise proved on record by clear, cogent and convincing evidence.
Emission of semen or leaving of seminal stains or producing of any injury to the genitals is not necessary to constitute the offence of rape. Complete penetration or partial penetration of penis within the labia majora or the vulva or pudenda without emission of semen or even an attempt at penetration is quite possible to commit legally the offence of rape without producing any injury to the genitals or leaving any seminal stains. (Vide Modi in Medical jurisprudence and Toxicology (Twenty First Edition) at page 369 & Parikh's Textbook of Medical jurisprudence and Toxicology).
Explanation appended to Section - 375 IPC clearly provides penetration is sufficient to constitute the sexual intercourse necessary to the offence of rape.
It is also to be noticed that in case, 'Ranjit Hazarika Vs. State of Assam', (1998) 8 SCC 635, the Hon'ble Supreme Court observed that nonrupture of hymen or absence of injury on victim's 27 of 55 28 FIR No. 379/10 PS - Vijay Vihar private parts does not belie the testimony of the prosecutrix.
In case 'O. M. Baby (Dead) by LRs Vs. State of Kerala', 2012 VI AD (S.C.) 521, the Hon'ble Supreme Court held that absence of injuries or mark of violence on the person of the prosecutrix may not be decisive, particularly, in a situation where the victim did not offer any resistance on account of threat or fear meted out to her.
In view of above and in the circumstances, the medical/gynaecological examination of PW14 - prosecutrix vide MLC Ex. PW7/A stands proved on the record.
VIRILITY OF THE ACCUSED RAMESH @ PEELA
16. PW9 Dr. Kuldeep Singh, CMO, BSA Hospital has deposed that on 01/08/2012, he alongwith Dr. Arvind, Junior Resident had examined one Rakesh (be read as Ramesh) @ Peela S/o Chander Singh, Age about 48 years on the request of Inspector S. K. Jha of PS - Vijay Vihar. After examination, patient was referred to SR Surgery and Department of Forensic Medicine for collection of samples and opinion over sexual capability of the patient. The MLC was prepared by Dr. 28 of 55 29 FIR No. 379/10 PS - Vijay Vihar Arvind under his supervision. The MLC is Ex. PW9/A, bearing his signature at point 'A' and bearing the signature of Dr. Arvind at point 'B'.
PW8 Dr. Vijay Dhankar, HOD Forensic Medicine BSA Hospital has deposed that on 01/08/2012, he examined one Rakesh (be read as Ramesh) @ Peela S/o Chander Singh, Age about 48 years on the request of Inspector S. K. Jha of PS - Vijay Vihar as the patient was referred to him by the CMO on duty. After examination her opined that there was nothing to suggest that patient was not capable of performing sexual intercourse. His detailed report is Ex. PW8/A, bearing his signature at point 'A'.
Despite grant of opportunity PW9 - Dr. Kuldeep Singh and PW8 - Dr. Vijay Dhankar were not crossexamined on behalf of accused.
In view of above and in the circumstances, it stands proved on the record that accused Ramesh @ Peela was capable of performing sexual intercourse.
DNA FINGER PRINTING EVIDENCE
17. PW18 - Sh. A. K. Srivastava Deputy Director, DNA Unit, FSL, Rohini, Delhi who proved the DNA examination report Ex.
29 of 55 30 FIR No. 379/10 PS - Vijay Vihar PW18/A, and the Genotype data of the exhibits Ex. PW18/B both bearing his signature at point 'A'.
During his crossexamination, PW18 - Sh. A. K. Srivastava, Deputy Director, DNA Unit has deposed that : "It is correct that I have also prepared my report no. 2011/DNA2562/624, DNA No. 61/2011 dated 15/11/2011 in connection with the present case also. The same is Ex. PW18/DX (the report already marked as Ex. PW11/A during the trial of coaccused Rani). The genotype table relating to the said DNA Report Ex. PW18/DX was prepared. Vol. Since the blood sample of the accused was not there, for this reason no comparison could be done and the genotype table was not annexed with the said report Ex. PW18/DX. It is wrong to suggest that the genotype table/data Ex. PW18/B is not correct or that genotype table/data Ex. PW18/B has been prepared at the instance of the IO."
There is nothing in the crossexamination of PW18 - Dr. A. K. Srivastava, Deputy Director, DNA Unit so as to impeach his creditworthiness.
Now, let the DNA Report Ex. PW18/A, Allelic Data Ex. PW18/B and the report FSL No. 2011/DNA2562 dated 15/11/2011 Ex. PW18/DX be perused and analysed.
As per DNA Report Ex. PW18/A, the description of the 30 of 55 31 FIR No. 379/10 PS - Vijay Vihar sources, DNA examination and results of examination reads as under : DESCRIPTION OF ARTICLES CONTAINED IN PARCEL Forensic Parcels received on 06/08/2012 vide FSL No. 2012/DNA5797 Parcel 1 : One paper envelope sealed with the original seal of "DR.BSAH DEPT. OF F.M. GOVT. OF DELHI" containing exhibit '1' which has been internally marked as exhibit '9' in this laboratory is returned unexamined.
Parcel 2 : One paper envelope sealed with the seal of "DR.BSAH DEPT. OF F.M. GOVT. OF DELHI" containing exhibit '2' which has been internally marked as exhibit '10' in this laboratory. Exhibit 10 : Dark brown liquid blood sample described as "Blood sample of accused".
DNA EXAMINATION The source of exhibit '10' was subjected to DNA isolation and DNA profile was generated for the exhibit '10' by using AmpFL STR Identifiler Plus PCR Amplification Kit. STR analysis was used for the sample. Data was analyzed by using Gene Mapper IDX Software. RESULTS OF EXAMINATION The alleles of the source of exhibit '10' (Blood sample of Accused 31 of 55 32 FIR No. 379/10 PS - Vijay Vihar Ramesh @ Pilla (Peela) which was received on 06/08/1012 (06/08/2012) vide FSL No. 2012/DNA5797 are accounted in the mixed alleles of the source of exhibit '4' (Vaginal Swab), exhibit '5' (Microslide), exhibit '6' (Cotton wool swab), exhibit '7' (Microslide), exhibit '8a' (Underwear of victim), and exhibit '8b' (Cloth piece) which were already examined in FSL Delhi & reported vide FSL No. 2011/DNA2562 on 15/11/2011. Note :
1. Parcel 1 is returned unexamined as Parcel 2 was sufficient to conclude the result of this case.
2. The remnants of the exhibit have been sealed with seal of 'A.K.S. FSL DELHI".
Encl: AnnexureI - Genotype data of exhibits (Ex. PW18/B) As per Genotype analysis for establishing identity of accused using MICROSATELLITES reads as under :
i) D8S1179 ii) D21S11 iii) D7S820 iv) CSF1P0 v) D3S1358 vi) TH01
vii) D13S317 viii) D16S539 ix) D2S1338 x) D19S433 xi) vWA xii) TP0X xiii) D18S51 xiv) D5S818 xv) FGA AND AMELOGENIN Loci Exhibit - 4 Mixed Exhibit - 5 & 7 Exhibit - 6 Mixed Exhibit - 8a Exhibit - 8b Mixed Exhibit - 10 Allele data Mixed Allele data Allele data Mixed Allele data Allele data Cloth Mixed Allele Vaginal Swab Micro slides Cottonwool swab Underwear of piece data Blood 2011/DNA2562 2011/DNA2562 2011/DNA2562 Victim 2011/DNA2562 sample of 2011/DNA2562 Accused Ramesh @ Pilla received vide FSL No. 2012/DNA5797 32 of 55 33 FIR No. 379/10 PS - Vijay Vihar D8S1179 12, 13, 14, 15 12, 13, 14, 15 12, 13, 14, 15 12, 13, 14, 15 12, 13, 14, 15 12, 15 D21S11 29, 30, 32.3 29, 30, 32.3 29, 30, 32.3 29, 30, 32.3 29, 30, 32.3 29, 32.2 D7S820 8, 11 8, 11 8, 11 8, 11 8, 11 8, 11 CSF1P0 11, 12, 13 11, 12, 13 11, 12, 13 11, 12, 13 11, 12, 13 12, 13 D3S1358 15, 16, 17, 18 15, 16, 17, 18 15, 16, 17, 18 15, 16, 17, 18 15, 16, 17, 18 15, 17 TH01 6, 8, 9 6, 8, 9 6, 8, 9 6, 8, 9 6, 8, 9 8, 9 D13S317 8, 9, 10, 11, 12 8, 9, 10, 11, 12 8, 9, 10, 11, 12 8, 9, 10, 11, 12 8, 9, 10, 11, 12 8, 12 D16S539 10, 11, 12, 13 10, 11, 12, 13 10, 11, 12, 13 10, 11, 12, 13 10, 11, 12, 13 10, 12 D2S1338 18, 19, 20, 24, 25 18, 19, 20, 24, 25 18, 19, 20, 24, 25 18, 19, 20, 24, 25 18, 19, 20, 24, 25 20, 24 D19S433 12, 13, 14, 15, 16 12, 13, 14, 15, 16 12, 13, 14, 15, 16 12, 13, 14, 15, 16 12, 13, 14, 15, 16 13, 16 vWA 14, 15, 17, 18, 19 14, 15, 17, 18, 19 14, 15, 17, 18, 19 14, 15, 17, 18, 19 14, 15, 17, 18, 19 19 TP0X 8, 9, 10, 11 8, 9, 10, 11 8, 9, 10, 11 8, 9, 10, 11 8, 9, 10, 11 8, 11 D18S51 13, 14, 16, 18 13, 14, 16, 18 13, 14, 16, 18 13, 14, 16, 18 13, 14, 16, 18 16, 18 D5S818 11, 12, 13 11, 12, 13 11, 12, 13 11, 12, 13 11, 12, 13 12, 13 FGA 18, 21, 22, 24, 25 18, 21, 22, 24, 25 18, 21, 22, 24, 25 18, 21, 22, 24, 25 18, 21, 22, 24, 25 22, 25 AMELOGENIN XY XY XY XY XY XY In the report FSL No. 2011/DNA2562 dated 15/11/2011 Ex. PW18/DX, forming part of the DNA Report Ex. PW18/A, the description of source, biological examination, DNA examination, result of examination and conclusion reads as under : DESCRIPTION OF THE SOURCE Parcel No. 1 : One cloth parcel sealed with the seal of 'SD' containing exhibits '1', '2', '3A', '3B', '4', '5', '6', '7', '8a' & '8b'.
Exhibit 1 : Some Nail clippings kept in a glass tube.
33 of 55 34 FIR No. 379/10 PS - Vijay Vihar Exhibit 2 : Black filamentous material described as 'Pubic Hair'. Exhibit 3A : Some liquid blood kept in vacutainer tube. Exhibit 3B : Some liquid blood kept in vacutainer tube. Exhibit 4 : Some cotton wool swab wrapped on a plastic stick kept in tube described as 'Vaginal Swab' of prosecutrix (name withheld).
Exhibit 5 : One microslide having thin smear, described as 'Vaginal swab' kept in paper packet.
Exhibit 6 : Some cotton wool swab wrapped on a plastic stick kept in plastic tube.
Exhibit 7 : One microslide having thin smear, described as 'Cervical smear of prosecutrix (name withheld)'. Exhibit 8a : Some underwear described as 'Underwear of prosecutrix (name withheld)'.
Exhibit 8b : One cloth piece. BIOLOGICAL EXAMINATION
Semen was identified on exhibit no. '4', '5', '6', '7', '8a' & '8b'. DNA EXAMINATION The exhibits '1', '2', '3A', '3B', '4', '5', '6', '7', '8a' & '8b' were subjected to DNA isolation and DNA was isolated from the exhibits '3A', '3B', '4', '5', '6', '7', '8a' & '8b'. However DNA could not be isolated from the exhibits '1' & '2'. DNA profiles were generated for exhibits '4', '5', '6', '7', '8a' & '8b'. However DNA profile could not be generated for exhibits '3A' & '3B' due to non amplification. STR analysis was used for the sample. Data was analysed by using Genescan and Genotype Software.
34 of 55 35 FIR No. 379/10 PS - Vijay Vihar RESULT OF EXAMINATION DNA Profile of male origin has been generated on the source of exhibit '4' (vaginal swab of victim), exhibit '5' (microslide), exhibit '6' (cotton wool swab), exhibit '7' (microslide), exhibit '8a' (Underwear of victim) & exhibit '8b' (cloth piece).
CONCLUSION No opinion could be offered from this laboratory due to non availability of the exhibit for comparison.
Note :
1. Remnants of the exhibits have been sealed with the seal of AKS FSL DELHI.
On careful perusal and analysis of the DNA Report Ex. PW18/A and the allelic data Ex. PW18/B, coupled with the report FSL No. 2011/DNA2562 dated 15/11/2011, Ex. PW18/DX as reproduced hereinabove it clearly shows that the alleles of the source of exhibit '10' (Blood sample of Accused Ramesh @ Pilla (Peela) are accounted in the mixed alleles of the source of exhibit '4' (Vaginal Swab of victim), exhibit '5' (Microslide described as 'Vaginal Swab' of victim), exhibit '6' (Cotton wool swab of victim), exhibit '7' (Microslide described as 'Cervical Smear' of victim), exhibit '8a' (Underwear of 35 of 55 36 FIR No. 379/10 PS - Vijay Vihar victim) and exhibit '8b' (Cloth piece of victim).
On a conjoint reading of the medical/gynaecological examination vide MLC Ex. PW7/A of the prosecutrix, together with the MLC of accused Ramesh @ Peela Ex. PW8/A, in the light of DNA Report Ex. PW18/A, allelic data Ex. PW18/B, the report FSL No. 2011/DNA2562 dated 15/11/2011 Ex. PW18/DX as detailed and analysed hereinabove, it clearly indicates the taking place of sexual intercourse activity.
In the circumstances, it stands clearly established on the record that the sexual intercourse activity has taken place in the instant case.
It is also to be noticed that as per the report FSL No. 2011/DNA2562 dated 15/11/2011 Ex. PW18/DX, coupled with the DNA Report Ex. PW18/A and allelic data Ex. PW18/B, as reproduced hereinabove, prosecution has discharged its initial burden of proving the presence of HUMAN SEMEN on exhibit '4' (Vaginal Swab of victim), exhibit '5' (Microslide described as 'Vaginal Swab' of victim), exhibit '6' (Cotton wool swab of victim), 36 of 55 37 FIR No. 379/10 PS - Vijay Vihar exhibit '7' (Microslide described as 'Cervical Smear' of victim), exhibit '8a' (Underwear of victim) and exhibit '8b' (Cloth piece of victim). Accused was under an obligation to explain how and under what circumstances, the Human semen came to be present on the said exhibits '4', '5', '6', '7', '8a' and '8b' as detailed hereinabove. The absence of such an explanation both in the section 313 Cr.P.C. statement of the accused and his omission to lead any evidence in this regard and his complete denial becomes an additional link in the prosecution case.
18. Now let the testimonies of PW14 - prosecutrix and PW4 - Ashok Singh be perused and analysed.
PW14 prosecutrix, in her examinationinchief has deposed which is reproduced and reads as under : "I know accused Peela. I can identify him , if shown to me. At this stage the wooden partition is removed. The witness pointed towards the accused Ramesh @ Peela and identified him correctly.
At this stage, the wooden partition is restored to its original position.
37 of 55 38 FIR No. 379/10 PS - Vijay Vihar I was residing with Rani in Delhi about 45 years ago. She used to bring accused Peela at her house and she used to get Galat Kaam with me from Peela after taking money from him. Rani took money from Peela and Peela committed Galat Kaam two times with me. Rani was introduced to me by one Shakuntala and thereafter, Rani got me married with one Vijender. Vijender used to harass me after consuming liquor and he also used to commit Galat Kaam with me. Vijender was not giving me any expenses (Kharcha). I disclosed about the said acts of Vijender to my father. Thereafter, I was left at the house of Mama - Jeth, Dudharu in Rohini and he also started harassing and giving beatings to me. From there, I came to the house of Rani and started residing there. Thereafter, Rani used to take me to different persons for committing Galat Kaam upon me and for that she was taking money from them.
One day when Peela came to the house of Rani for committing Galat Kaam with me, I escaped from there and went to the Pradhan of the locality and informed him about the acts of Rani and of the acts of committal of Galat Kaam of Peela upon me. Police came there and made inquiries from me and recorded my statement which is already Ex. PW12/B, bearing my thumb impression at point A. I was also got medically examined in the Hospital. My clothes were seized by the police. Galat Kaam I mean committal of sexual intercourse.
At this stage, MHC(M) produced one sealed pullinda duly sealed with the seal of Court. The same is opened and is found containing one panty plus pad. Witness correctly identified the same to be of her. The same is collectively exhibited as Ex. P1."
From the aforesaid narration of PW14 - prosecutrix, it is 38 of 55 39 FIR No. 379/10 PS - Vijay Vihar clear that she knows accused Peela and had identified him. She was residing with Rani in Delhi about 45 years ago. She (Rani) used to bring accused Peela at her (Rani) house and she (Rani) used to get Galat Kaam with her from Peela after taking money from him. Rani took money from Peela and Peela committed Galat Kaam two times with her. Rani was introduced to her (prosecutrix) by one Shakuntala and thereafter, Rani got her (prosecutrix) married with one Vijender. Vijender used to harass her after consuming liquor and he also used to commit Galat Kaam with her. Vijender was not giving her any expenses (Kharcha). She disclosed about the said acts of Vijender to her father. Thereafter, she was left at the house of Mama - Jeth, Dudharu in Rohini and he also started harassing and giving beatings to her. From there, she came to the house of Rani and started residing there. Thereafter, Rani used to take her to different persons for committing Galat Kaam upon her (prosecutrix) and for that she was taking money from them. One day when Peela came to the house of Rani for committing Galat Kaam with her, she escaped from there and went to the Pradhan of the locality and informed him about the acts of Rani and of the acts of committal of Galat Kaam of Peela upon her. Police came there and made inquiries 39 of 55 40 FIR No. 379/10 PS - Vijay Vihar from her and recorded her statement which is already Ex. PW12/B, bearing her thumb impression at point 'A'. She was also got medically examined in the Hospital. Her clothes were seized by the Police. Galat Kaam she means committal of sexual intercourse. She also identified her one panty plus pad Ex. P1 (Colly.).
PW14 - Prosecutrix during her crossexamination has negated the suggestions that the clothes Ex. P1 (colly.) do not belong to her or that she has wrongly identified clothes Ex. P1 as of hers or that Rani was not taking money of getting done Galat Kaam with her or that no Galat Kaam was done with her at the house of Rani or that accused Peela had not committed any Galat Kaam with her or that she is deposing falsely at the instance of Police officials or that accused Peela has been falsely implicated by her or that she is not aware that for how many times Peela had committed Galat Kaam with her vol. Peela had committed Galat Kaam with her two times or that she is deposing falsely.
Inspite of incisive crossexamination of PW14 - 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 40 of 55 41 FIR No. 379/10 PS - Vijay Vihar examination and her testimony is consistent throughout. The testimony of PW14 - 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.
At the cost of repetition, in one of the suggestions put to PW14 - prosecutrix during her crossexamination by the Learned Counsel for the accused as detailed hereinabove, it is to be noticed that, accused has not disputed the factum of committal of Galat Kaam, with the prosecutrix.
The relevant part of crossexamination of PW14 - prosecutrix is reproduced and reads as under : "I am not aware that for how many times Peela had committed Galat Kaam with me. Voltd. Peela had committed Galat Kaam with me two times."
The testimony of PW14 - Prosecutrix is also found to be corroborated by the medical/gynaecological evidence and the DNA Finger Printing evidence as discussed hereinbefore.
41 of 55 42 FIR No. 379/10 PS - Vijay Vihar The testimony of PW14 - Prosecutrix is also found to be in consonance with her statement Ex. PW12/B made to the Police.
The testimony of PW14 - Prosecutrix is also found to be corroborated by PW4 - Ashok Singh, 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 - Ashok Singh, S/o Chandan Singh, R/o A35, Sector
- 23, Rohini, Delhi in his examinationinchief has deposed which is reproduced and reads as under : "I am running a grocery shop on the above mentioned address (A35, Sector23, Rohini, Delhi). Date, month and year, I do not remember however, it was about 2 or 2 ½ year ago, prosecutrix (name withheld) came running to my shop and she told me that she is residing with Rani who has brought her (Prosecutrix) from Azamgarh and they are getting wrong deed done from her (Mujhse galat kaam kara rahe hai). Rani was residing in B Block in our colony. I had sent threefour ladies at the house of Rani but she was not found present there. Thereafter, I made a phone call at 100 number from my mobile phone. I do not remember the complete mobile number but the mobile number was having 300 in the last. Police came there and I handed over prosecutrix (name withheld) to the Police."
42 of 55 43 FIR No. 379/10 PS - Vijay Vihar From the aforesaid narration of PW4 - Ashok Singh, it is clear that he is running a grocery shop at A35, Sector23, Rohini, Delhi. He does not remember date, month and year, however, it was about 2 or 2½ year ago, prosecutrix (name withheld) came running to his shop and she told him that she is residing with Rani who has brought her (Prosecutrix) from Azamgarh and they are getting wrong deed done from her (Mujhse Galat Kaam Kara Rahe Hai) Rani was residing in B Block in their colony. He had sent threefour ladies at the house of Rani but she was not found present there. Thereafter, he made a phone call at 100 number from his mobile phone but he does not remember the complete mobile number but the mobile number was having 300 in the last. Police came there and he handed over prosecutrix (name withheld) to the Police.
PW4 - Ashok Singh during his crossexamination has negated the suggestions that husband of Rani and her children were at her house at the time when he went there with Police or that no call at 100 number was made by him to the Police through his mobile phone.
43 of 55 44 FIR No. 379/10 PS - Vijay Vihar Inspite of incisive crossexamination of PW4 - Ashok Singh, nothing material has been brought out so as to impeach his creditworthiness. He has withstood the rigors of crossexamination without being shaken. On careful perusal and analysis his testimony is found to be natural, clear, reliable, inspiring confidence and having a ring of truth. There is nothing in his statement to suggest that he had any animus against the accused Ramesh @ Peela to falsely implicate him in the case.
19. While analysing the testimonies of PW14 - Prosecutrix, and PW4 - Ashok Singh as discussed hereinabove inspite of incisive cross examination of PW14 - Prosecutrix, and PW4 - Ashok Singh nothing has come out in their statements which may throw even a slightest doubt on the prosecution version of the incident. Though the suggestion by the defence to PW14 Prosecutrix that, the clothes Ex. P1 (colly.) do not belong to her or that she has wrongly identified clothes Ex. P1 as of hers or that Rani was not taking money of getting done Galat Kaam with her or that no Galat Kaam was done with her at the house of Rani or that 44 of 55 45 FIR No. 379/10 PS - Vijay Vihar accused Peela had not committed any Galat Kaam with her or that she is deposing falsely at the instance of Police officials or that accused Peela has been falsely implicated by her or that she is not aware that for how many times Peela had committed Galat Kaam with her vol. Peela had committed Galat Kaam with her two times or that she is deposing falsely and the suggestions to PW4 - Ashok Singh that husband of Rani and her children were at her house at the time when she went there with Police or that no call at 100 number was made by him to the Police through his mobile phone, 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 45 of 55 46 FIR No. 379/10 PS - Vijay Vihar Medical jurisprudence and Toxicology (Twenty First Edition) at page 369 which reads as : "Thus to constitute the offence of rape it is not necessary that there should be complete penetration of penis with emission of semen and rupture of hymen. Partial penetration of the penis within the labia majora or the vulva or pudenda with or without emission of semen or even an attempt at penetration is quite possible to commit legally the offence of rape without producing any injury to the genitals or leaving any seminal stains. In such a case the medical officer should mention the negative facts in his report, but should not give his opinion that no rape had been committed. Rape, is crime and not a medical condition. Rape is a legal term and not a diagnosis to be made by the medical officer treating the victim. The only statement that can be made by the medical officer is that there is evidence of recent sexual activity. Whether the rape has occurred or not is a legal conclusion, not a medical one."
In Parikh's Textbook of Medical jurisprudence and 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."
46 of 55 47 FIR No. 379/10 PS - Vijay Vihar In Encyclopedia of Crime and Justice (Vol. 4) at page 1356, it is stated : ".....even slight penetration is sufficient and emission is unnecessary."
On analysing the testimony of PW14 - Prosecutrix in the light of medical/gynaecological examination vide MLC Ex. PW7/A of the prosecutrix, DNA Report Ex. PW18/A, allelic data Ex. PW18/B, the report FSL No. 2011/DNA2562, dated 15/11/2011, Ex. PW18/DX together with the MLC of accused Ramesh @ Peela Ex. PW8/A, 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 accused Ramesh @ Peela with PW14 - Prosecutrix without her consent.
21. Learned Counsel for the accused submitted that evidence of 47 of 55 48 FIR No. 379/10 PS - Vijay Vihar PW14 - prosecutrix is suffering from material contradictions and discrepancy and is not believable, trustworthy and reliable one. He further submitted that the entire criminal proceeding is sheer misuse and abuse of process of law and the same has been instituted with oblique and ulterior motive and for collateral purposes as PW14 - prosecutrix has also derived the benefit and advantage/gain by her in collusion and conspiracy with Rani.
I have carefully perused and analysed the evidence on record.
At the outset, the Learned Counsel for the accused has failed to point out the material contradictions and discrepancies from which the testimony of PW14 - prosecutrix is suffering from which makes her not believable, trustworthy and reliable one.
The testimony of PW14 - prosecutrix has been reproduced, discussed and analysed hereinabove and the same on careful perusal and analysis has been found to be natural, clear, cogent, trustworthy and reliable.
At the cost of repetition, it is pertinent to reproduce the 48 of 55 49 FIR No. 379/10 PS - Vijay Vihar examinationinchief of PW14 - prosecutrix which reads as under : "I know accused Peela. I can identify him , if shown to me. At this stage the wooden partition is removed. The witness pointed towards the accused Ramesh @ Peela and identified him correctly.
At this stage, the wooden partition is restored to its original position.
I was residing with Rani in Delhi about 45 years ago. She used to bring accused Peela at her house and she used to get Galat Kaam with me from Peela after taking money from him. Rani took money from Peela and Peela committed Galat Kaam two times with me. Rani was introduced to me by one Shakuntala and thereafter, Rani got me married with one Vijender. Vijender used to harass me after consuming liquor and he also used to commit Galat Kaam with me. Vijender was not giving me any expenses (Kharcha). I disclosed about the said acts of Vijender to my father. Thereafter, I was left at the house of Mama - Jeth, Dudharu in Rohini and he also started harassing and giving beatings to me. From there, I came to the house of Rani and started residing there. Thereafter, Rani used to take me to different persons for committing Galat Kaam upon me and for that she was taking money from them.
One day when Peela came to the house of Rani for committing Galat Kaam with me, I escaped from there and went to the Pradhan of the locality and informed him about the acts of Rani and of the acts of committal of Galat Kaam of Peela upon me. Police came there and made inquiries from me and recorded my statement which is already Ex. PW12/B, bearing my thumb impression at point A. I was also got medically examined in the Hospital. My clothes were seized by 49 of 55 50 FIR No. 379/10 PS - Vijay Vihar the police. Galat Kaam I mean committal of sexual intercourse.
At this stage, MHC(M) produced one sealed pullinda duly sealed with the seal of Court. The same is opened and is found containing one panty plus pad. Witness correctly identified the same to be of her. The same is collectively exhibited as Ex. P1."
During her crossexamination, PW14 - prosecutrix has specifically & categorically deposed which is reproduced and reads as under : "Peela was not accompanying me on the day I had gone to inform Pradhan. Peela was not seen me on the day when I had gone to inform the Pradhan. Peela was seen by me on the next day of it at the Police Station. I had seen Peela two days prior to, of his seen by me in the Police Station, on the next day of the informing to Pradhan. Peela was seen by me at the time of committal of Galat Kaam with me at the house of Rani which was got committed by Rani after taking money by him. Two days prior to, of my seeing Peela in the PS, Peela had committed Galat Kaam with me. I do not know the full and complete name of Peela. I do not know the house where Peela was residing. It is wrong to suggest that the clothes Ex.P1 (colly.) do not belong to me. It is wrong to suggest that I have wrongly identified clothes Ex.P1 as of mine. It is wrong to suggest that Rani was not taking money of getting done Galat Kaam with me.
Rani did not take the money in my presence of getting done Galat Kaam with me from different persons. I had been shown accused Peela today by the police. Rani kept me at her house for about two 50 of 55 51 FIR No. 379/10 PS - Vijay Vihar months. It is wrong to suggest that no Galat Kaam was done with me at the house of Rani or that accused Peela had not committed any Galat Kaam with me. It is wrong to suggest that today I am deposing falsely at the instance of police officials. It is wrong to suggest that accused Peela has been falsely implicated by me. It is wrong to suggest that I am not aware that for how many times Peela had committed Galat Kaam with me. Voltd. Peela had committed Galat Kaam with me two times. It is wrong to suggest that I am deposing falsely."
On analysing the entire testimony of PW14 - prosecutrix it transpires that she has described the scenario implicating the accused Peela (accused Ramesh @ Peela) to be the author of crime, of the committal of Galat Kaam two times upon her. The accused has failed to elicit any material or relevant discrepancies or inconsistencies despite her searching crossexamination. She has withstood the rigors of cross examination without being shaken. Her version on the core spectrum of the crime has remained intact. There is nothing in her statement to suggest that she had any animus against accused Ramesh @ Peela to falsely implicate him in the case.
At the cost of repetition the testimony of PW14 - Prosecutrix has also been found to be corroborated by the 51 of 55 52 FIR No. 379/10 PS - Vijay Vihar medical/gynaecological evidence as well as the DNA Finger Printing evidence as discussed hereinbefore.
The testimony of PW14 - Prosecutrix is also found to be in consonance with her statement Ex. PW12/B made to the Police.
A futile attempt has been made by accused Ramesh @ Peela to save his skin from the clutches of law by floating a theory that, "the entire criminal proceeding is sheer misuse and abuse of process of law and the same has been instituted with oblique and ulterior motive and for collateral purposes as PW14 - prosecutrix has also derived the benefit and advantage/gain by her in collusion and conspiracy with Rani".
On careful perusal and analysis of the entire evidence on record, the theory so propounded by the accused Ramesh @ Peela has not at all being made probable must established by any cogent evidence. Nor the said theory so propounded by the accused was put/suggested to PW14 - prosecutrix during the course of her lengthy and incisive cross examination. Nor even a single word regarding the said theory so propounded; was uttered by the accused Ramesh @ Peela during his statement u/s 313 Cr.P.C. In the circumstances, the said theory so 52 of 55 53 FIR No. 379/10 PS - Vijay Vihar propounded by the accused is merely an afterthought and falls flat to the ground.
In the circumstances, there is no substance in the plea so raised by the Learned Counsel for the accused.
22. Learned Counsel for the accused referred to a case and is reported as 'K. P. Thimmappa Gowda Vs. State of Karnataka', 2011 STPL (Web) 327 SC.
I have carefully gone through the same. With due respect there is no dispute as to what has been held therein but the same is wholly distinguishable in view of the peculiar facts and nature of evidence adduced in the instant case. In case titled Sunil Kumar Vs. State 181 (2011) DLT 528(DB) it was held that "No case can strictly be a precedent in a criminal matter for the reason no two criminal trials would unfold the same story and the same evidence. Thus, a decision cited pertaining to the destination reached at a particular criminal voyage has to be carefully applied, on a principle of law, in a subsequent voyage".
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23. In view of above and in the circumstances, prosecution has thus categorically proved beyond shadows of all reasonable doubts that in between May, 2010 and 31/10/2010 at House No. D66, Sardar Colony, Sector - 23, Rohini, Delhi accused Ramesh @ Peela committed rape upon the prosecutrix, aged around 32 years, against her wishes and without her consent.
I accordingly hold accused Ramesh @ Peela guilty for the offence punishable u/s 376 IPC and convict him thereunder.
24. In view of above discussion, I am of the considered opinion that as far as the involvement of the accused Ramesh @ Peela in the commission of the offence u/s 376 IPC is concerned, the same is sufficiently established by the cogent and reliable evidence and in the ultimate analysis, the prosecution has been able to bring the guilt home to the accused Ramesh @ Peela beyond shadows of all reasonable doubts and there is no room for hypothesis, consistent with that of innocence of accused. I, therefore, hold accused Ramesh @ Peela guilty for the offence punishable u/s 376 IPC and convict him thereunder.
54 of 55 55 FIR No. 379/10 PS - Vijay Vihar Announced in the open Court (MAHESH CHANDER GUPTA) on 27th Day of January, 2014 Additional Sessions Judge Special Fast Track Court (N/W District), Rohini, Delhi 55 of 55