State vs . 1. Sazid on 16 August, 2014

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Delhi District Court

State vs . 1. Sazid on 16 August, 2014

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                                                                                         FIR No. 121/09
                                                                                      PS - Sultan Puri



    IN THE COURT OF SH. MAHESH CHANDER GUPTA : 
   ADDITIONAL SESSIONS JUDGE : SPECIAL FAST TRACK 
    COURT : NORTHWEST DISTRICT : ROHINI : DELHI

SESSIONS CASE NO. :  40/13
Unique ID No.     :   02404R0199852009

State             Vs.                    1.  Sazid
                                              S/o Saifi Ahmed
                                              R/o A227, Aman Vihar,
                                              Sultan Puri, Delhi.

                                         2.  Mustakeem
                                              S/o Sh. Riaz Ahmed
                                              R/o A219, Aman Vihar,
                                              Sultan Puri, Delhi.

FIR No.         :  121/09
Police Station  :  Sultan Puri
Under Sections  :  363/366/376/309/328/109/34 IPC



Date of committal to session Court       :    14/07/2009

Date on which judgment reserved          :    06/08/2014

Date on which judgment announced :            16/08/2014



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                                                                                             FIR No. 121/09
                                                                                          PS - Sultan Puri




J U D G M E N T

1. Briefly stated the case of the prosecution as unfolded by the report under section 173 Cr.P.C. is as under : That on 03/04/2009 on receipt of DD No. 3A ASI Rajender along with Constable Radhey Shyam reached at House No. F2/222, Sultan Puri, Delhi where complainant Sh. Ajit Kumar met. Sh. Ajit Kumar S/o Sh. Parfulla Kumar R/o House No. F2/222, Sultan Puri, Shani Bazar Road, Sultan Puri, Delhi got recorded his statement which is to the effect that, he lives with his family at the above address and is the agent of Life Insurance Corporation of India. His daughter/Prosecutrix (name withheld being a case u/s 376 IPC), aged 15½ years who studies in 10th Class on 02/04/2009 at about 9:30/10:00 p.m. had gone from the house without telling anything to them. She was intensely searched by them of their own means (Jiski Apne Taur Hamne Kafi Talash Ki) but nothing could be known about her. The age of his daughter is 15½ years, height 5''2 inches, face round, body average and is having a mark of mole on the right side of the chin, who is wearing Jamuni colour Chhurat 2 of 166 3 FIR No. 121/09 PS - Sultan Puri pajami and is wearing cream and Jamuni colour kamiz and is wearing light blue colour chappals in her feet. He suspects that his daughter has been enticed away by Sazid S/o Shafi Ahmed who lives in A Block, Aman Vihar, Delhi. Search for his daughter be made and legal action be taken against Sazid. Statement has been heard, understood and is correct. On the basis of the statement and from the circumstances finding that an offence u/s 363 IPC appeared to have been committed, the case was got registered and investigation was proceeded with by ASI Rajender. Search for the prosecutrix was made. Statement of the witnesses were recorded. During the course of investigation, it was found that the prosecutrix has been taken by Sazid on his motorcycle no. DL4SBK1867 to the house of the sister of his friend Mustakim at Bagpat, U.P. ASI Rajender made verification at the house of the sister of Mustakim at Bagpat, U.P. but it revealed that they all three had gone from there. All three were searched. On 04/04/2009, accused Mustakim was arrested and his disclosure statement was recorded and was produced in the Court. On 05/08/2009 prosecutrix and accused Sazid came to the Police Station and told Woman Constable Raj Kumari that on 02/04/2009 they had gone from their house and had come today 3 of 166 4 FIR No. 121/09 PS - Sultan Puri (05/08/2009) in the Police Station and they had drunk some poisonous thing. Both of them were handed over to SI Mukesh Rana by the SHO and both were taken to SGM Hospital, Mangol Puri where prosecutrix vide MLC No. 3747/09 and accused Sazid vide MLC 3748/09 were got admitted in the Hospital. During this ASI Rajender reached at SGM Hospital and recorded the statement of SI Mukesh and the exhibits were taken into Police possession and the statements of the witnesses were recorded. Prosecutrix and Sazid were kept admitted in the Hospital (Bharti Rakha Gaya). ASI Rajender recorded statement of prosecutrix u/s 161 Cr.P.C. and obtained the copy of the date of birth of the prosecutrix. On 08/04/2009 accused Sazid and prosecutrix were discharged from the Hospital. Accused Sazid was interrogated and after finding sufficient evidence against him, he was arrested and his disclosure statement was recorded. Statements of witnesses were recorded. Further investigation was handed over to SI Ashok Kumar. Accused Sazid was produced in the Court and was sent to JC. Accused Mustakeem had already been arrested and was running in JC and the allegations of the offence u/s 366 IPC were also upon him (accused Mustakim). SI Ashok moved an application before the Learned MM for 4 of 166 5 FIR No. 121/09 PS - Sultan Puri cancellation of the bail order of accused Mustakim on which the Production Warrant was issued for 13/04/2009. On 13/04/2009 accused Mustakim was produced in the Court and after hearing, the bail order of accused Mustakim was canceled and offence u/s 366 IPC was added against accused Mustakim and he was sent to JC. Statement of prosecutrix u/s 164 Cr.P.C. was got recorded on 21/04/2009. In her statement u/s 164 Cr.P.C. prosecutrix has also stated that Sazid and his brother had mixed some intoxicating thing in her food in the night due to which she had become unconscious and on that night Sazid in her unconscious condition had committed 'Galat Kaam' with her. Sections 309/328/109 IPC were added in the case. Section 309 IPC was added against accused Sazid. During the course of investigation motorcycle no. DL4SBK1867 was taken into Police possession. Accused Mohd. Nasif was searched for but no clue could be gathered against him. Accused Mohd. Nasif was evading his arrest and NBW was obtained against him and on his arrest the supplementary charge sheet shall be filed against him. The sealed exhibits were sent to the FSL.

Upon completion of the necessary further investigation challan for the offences u/s 363/366/376/309/328/109/34 IPC was 5 of 166 6 FIR No. 121/09 PS - Sultan Puri prepared against accused Sazid and Mustakim and was sent to the Court for trial.

2. Since the offences under sections 366/376/328 IPC are exclusively triable by the Court of Session therefore, after compliance of the provisions of section 207 Cr.P.C. the case was committed to the Court of Session 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 u/s 363/34 IPC, u/s 366/34 IPC and u/s 328/34 IPC against accused Sazid and Mustakeem and a case u/s 376 IPC and u/s 309 IPC against accused Sazid was made out. The charge was framed accordingly, which was read over and explained to both the accused to which they pleaded not guilty and claimed trial.

4. In support of its case prosecution has in fact examined 21 witnesses. As PW2, two witnesses have been examined i.e. PW2 - Ajit Kumar and PW2 - Dr. Neeraj Kumar, Senior, Medicine, SGM Hospital, New Delhi. It is also to be mentioned that Dr. Manoj 6 of 166 7 FIR No. 121/09 PS - Sultan Puri Dhingra has been examined as PW19 as well as PW20. PW1 - The prosecutrix (name withheld being a case u/s 376 IPC), PW2 Sh. Ajit Kumar, father of the prosecutrix, PW2 - Dr. Neeraj Kumar, Senior, Medicine, SGM Hospital, New Delhi, PW3 - Constable Sanjay, PW4 - Constable Radhey Shyam, PW5 - Constable Sukhbir, PW6 - Constable Ravinder, PW7 - W/Constable Raj Kumari, PW8 - Constable Satyender, PW9 - HC Rajesh Kumar Chauhan, PW10 - ASI Rajinder Singh, PW11

- Raman Kumar, SubRegistrar, Birth and Death, MCD, Najafgarh Zone, Delhi, PW12 - SI Mukesh Rana, PW13 - Sunil Kumar, Lab. Assistant, Government Sarvodaya Kanya Vidhalya, Delhi, PW14 - Sh. S. S. Malhotra, Learned ADJ, Karkardooma Courts, Delhi, PW15 - Dr. Sanjay Jain, Casualty Incharge, SGM Hospital, Mangol Puri, Delhi, PW16 - Dr. Ritu Singhal, Medical Officer, SGM Hospital, Mangol Puri, Delhi, PW17 - SI Ashok, PW18 - HC Krishan Lal, PW19 - Dr. Manoj Dhingra, MOIC, Sanjay Gandhi Memorial Hospital, Delhi, PW20 Dr. Manoj Dhingra, MOIC, Sanjay Gandhi Memorial Hospital, Delhi.

5. In brief the witnessography of the prosecution witnesses is 7 of 166 8 FIR No. 121/09 PS - Sultan Puri as under : PW1 - Prosecutrix is the victim, who deposed regarding the incident and proved her statement u/s 164 Cr.P.C. Ex. PW1/A1 to Ex. PW1/A3 (also Ex. PW14/A in the evidence of PW14 - Sh. S. S. Malhotra, Learned ADJ) signed by her at points 'A' and also proved and identified her cloth, one brown colour undergarment Ex. P1.

PW2 - Sh. Ajit Kumar, is the father of the prosecutrix who deposed that Prosecutrix (name withheld) is his daughter. On 02/04/2009 his daughter/ prosecutrix (name withheld) was student of 10th class from Open School. On that day i.e. on 02/04/2009 his daughter/prosecutrix (name withheld) and his other family members were present at the house. He was present outside his house at a distance of about 50 yards. At about 10:00/10:15 p.m. he came back inside his house. At the time of taking dinner at his house he found his daughter/prosecutrix (name withheld) missing from his house. He searched for his daughter here and there but he could not find any clue on that night about her. He made inquiry from his wife also as where prosecutrix (name withheld) had gone from house. His wife told him 8 of 166 9 FIR No. 121/09 PS - Sultan Puri that his daughter had gone to market to purchase some books and other stationery articles and she did not turn up to his house. He got suspicion (suspicious) on accused Sazid present in the Court (correctly identified by witness) as he used to sit on a meat shop situated near his house and prior to that day his daughter/prosecutrix (name withheld) had complained against accused Sazid that he had teased her. Then he informed the Police at No. 100. PCR van reached at the spot and local Police also reached at the spot. His statement was recorded by ASI Rajender Singh at his house in which he named accused Sazid. His said statement is Ex. PW2/A which was signed by him between 12 mid night and 1:00 a.m. He came to know that his daughter/prosecutrix (name withheld) is admitted in SGM Hospital, Mangol Puri. Then, he reached there and found his daughter admitted there. Then she told him about the contents of the incident. He handed over photocopy of birth certificate of his daughter/prosecutrix (name withheld) issued by Registrar Birth, Govt. of Delhi and the same is mark 'A'. The said copy was taken into possession by IO vide memo Ex. PW2/B which bears his signatures at point 'A'. He handed over a photocopy of School Leaving Certificate of his daughter/prosecutrix (name withheld) to Police which 9 of 166 10 FIR No. 121/09 PS - Sultan Puri was taken into possession vide memo Ex. PW2/C which bears his signatures at point 'A'. The photocopy of School Leaving Certificate is mark 'B'. Accused Mustakeem (correctly identified by witness) was arrested by the Police on 04/04/2009 in his presence at about 7:25 p.m. from House No. 215, Aman Vihar, Delhi. IO prepared arrest memo Ex. PW2/D which bears his signatures at point 'A'. Personal search of accused Mustakeem was taken vide memo Ex. PW2/E which bears his signatures at point 'A'. Accused Mustakeem was interrogated and he made disclosure statement to Police which is Ex. PW2/E (Also as Ex. PW2/E1 in the evidence of PW10 - ASI Rajinder Singh) and bears his signatures at point 'A' and accused Mustakeem signed the same at point 'X'.

PW2 - Dr. Neeraj Kumar, Senior, Medicine, SGM Hospital, New Delhi who deposed that on 05/04/2009, at about 3:10 p.m., patient/prosecutrix (name withheld) was referred by CMO to him alongwith MLC No. 3747 with alleged history of absconding from house since 02/04/2009 at around 9:30 to 10:00 p.m. as told by ASI Rajender Singh as well as there was alleged history of ingestion of some unknown 10 of 166 11 FIR No. 121/09 PS - Sultan Puri substance 3040 minutes back. History of vomiting one episode. Patient was managed conservatively and kept under observation in casualty. He made endorsement at point 'A' on MLC Ex. PW2/A which bears his signature at point 'A'. He has seen MLC of prosecutrix (name withheld) Ex. PW2/A prepared by JR Dr. Mandeep Kaur. From the MLC it appears that aforesaid Doctor recorded alleged history, general condition of the patient and local examination which are mentioned in the MLC Ex. PW2/A which bear signature of aforesaid Doctor at point 'A'. He identify her handwriting and signature in official capacity as he had seen her writing and signing. The aforesaid Doctor has left the services from the Hospital. Her present whereabouts are not known to him. On the same day, at about 3;15 p.m., he examined patient Sazid referred by CMO alongwith MLC Ex. PW2/B. Patient was brought by ASI Rajender Singh with alleged history of absconding from house since 02/04/2009 at around 9:30 to 10:00 p.m. as well as alleged history of ingestion of some unknown substance. Patient was managed conservatively and kept under observation in casualty. He made endorsement of encircled portion 'A' on MLC of Sazid Ex. PW2/B which bears his signature at point 'X'. Both patients were advised for gastric lavage and blood sample for 11 of 166 12 FIR No. 121/09 PS - Sultan Puri toxicology screening.

PW3 - Constable Sanjay who deposed that on 08/04/2009, he was deputed by IO/ASI Rajender to guard accused Sazid present in the Court (correctly identified) who was admitted in SGM Hospital. On that day, at about 2:00 p.m., ASI Rajender reached at SGM Hospital and in the Hospital, IO discussed with Doctor and Doctor discharged the accused Sazid from the Hospital at about 4:00 p.m. Thereafter, he took the custody of accused Sazid. Thereafter, accused was interrogated by the IO in his presence and he made disclosure statement Ex. PW3/A which bears his signature at point 'A', to IO which was recorded in his presence. Accused Sazid signed the same at point 'X' to 'Y'. thereafter, he was arrested in this case vide arrest memo Ex. PW3/B which bears his signature at point 'A'. His personal search was taken by IO vide memo Ex. PW3/C which bears his signature at point 'A'. Thereafter, alongwith accused Sazid reached near the gate of Masjid, Jummewali at A4 Block, Sultan Puri from where the motorcycle bearing No. DL4SBK1867 make Bajaj Platina of Black colour was found parked and the same was stated to be used in the offence in the present case. The said motorcycle 12 of 166 13 FIR No. 121/09 PS - Sultan Puri was taken into possession by the IO vide memo Ex. PW3/D which bears his signature at point 'A'. Thereafter, they alongwith motorcycle and accused Sazid reached at PS - Sultan Puri and case property was deposited in the malkhana and accused Sazid was kept in the lockup. IO recorded his statement in this case.

PW4 - Constable Radhey Shyam who deposed that on 03/04/2009, he joined the investigation with ASI Rajender as DD No. 3A, true copy of the same is Ex. PW4/A, was marked to him for necessary action. Thereafter, he alongwith ASI Rajender reached at F2/222, Sani Bazar Road, Sultan Puri where one Ajit Kumar met them and he told about the kidnapping of his daughter/prosecutrix (name withheld) aged about 15½ years by one Sazid. Thereafter, IO recorded the statement of Ajit Kumar which is Ex. PW2/A and prepared rukka on the same and handed over the same to him. He took the same to PS - Sultan Puri and gave to Duty Officer for registration of the case on the basis of which the present case was registered. After the registration of the case, Duty Officer handed over original rukka and copy of FIR to him and he delivered the same to ASI Rajender Singh at the spot.

13 of 166 14 FIR No. 121/09 PS - Sultan Puri Thereafter, they alongwith Ajit Kumar reached at Aman Vihar at the house of accused Sazid and IO made inquiry from his family members about his whereabouts but accused Sazid was not found present there. Thereafter, they left his house and reached at A - Block and made search of prosecutrix (name withheld) and accused Sazid and they did not found any clue about the same. IO recorded his statement in this regard. On 04/04/2009, he joined the investigation with ASI Rajender IO of this case with complainant Ajit Kumar and they left the PS in the search of prosecutrix (name withheld) and accused and they made inquiry at Nangloi, Camp No. 2 & 3 and shown the photographs of prosecutrix (name withheld) to the persons of the locality but they did not find any clue about them and they came back to PS - Sultan Puri and Ajit Kumar was relieved by IO. Thereafter, he alongwith IO reached at Balbir Nagar, H1 Block, Sultan Puri where IO made inquiry about accused Sazid and prosecutrix (name withheld). Father of prosecutrix (name withheld) handed over birth certificate of prosecutrix (name withheld) issued by MCD Mark 'A' and Mark 'B' to IO and the same were taken into possession vide memo Ex. PW2/B and Ex. PW2/C which bears his signature at point 'B' on each. Thereafter, they alongwith complainant 14 of 166 15 FIR No. 121/09 PS - Sultan Puri Ajit reached at D7 Block, Sultan Puri where one secret informer met them and he informed IO that one person namely Mustakeem who is friend of Sazid is present at House No. A215, Aman Vihar and (if) raid is conducted he can be apprehended. Thereafter, they alongwith complainant reached there where accused Mustakeem present in the Court (correctly identified) was arrested when he was standing at first floor, Balcony at the instance of the complainant (Be read as 'informer'). He was interrogated by the IO and he made disclosure statement Ex. PW2/E (Also as Ex. PW2/E1 in the evidence of PW10 - ASI Rajinder Singh) which bears his signature at point 'B' and he was arrested by the IO vide Ex. PW2/D which bears his signature at point 'B' and his personal search was taken vide memo Ex. PW2/E which bears his signature at point 'B'. Accused Mustakeem was taken to SGM Hospital where he was medically examined and thereafter, he handed over the accused to ASI Rajender at PS - Sultan Puri. Accused was sent in the lockup and IO recorded his supplementary statement regarding the above mentioned fact at PS - Sultan Puri.

PW5 - Constable Sukhbir who deposed that on 24/04/2009, 15 of 166 16 FIR No. 121/09 PS - Sultan Puri he was posted at PS - Sultan Puri. He received the exhibits of the present case from MHC(M) of PS - Sultan Puri in sealed condition vide RC No. 269/21/08 and deposited the same at FSL Office. He handed over the copy of receiving and road certificate to MHC(M) on the same day after coming back from FSL Office. IO recorded his statement in this regard at PS - Sultan Puri. So long as these exhibits were remained in his possession, same were not tampered by him.

PW6 Constable Ravinder, who deposed that on 05/04/2009, he was present at PS - Sultan Puri and was on emergency duty. At about 2:30 p.m. on the direction of the then SHO PS - Sultan Puri, he accompanied the IO SI Mukesh Rana and the accused Sazid present in the Court (correctly identified by the witness) who was in his custody with SI Mukesh and one girl namely prosecutrix (name withheld) who was also taken from the PS in the custody of Lady Constable Raj Kumari to SGM Hospital for medical examination where they were medically examined. After the medical examination of the accused Doctor handed over two pullindas sealed with the seal of SGMH and one sample seal of the same specimen to IO in his presence and the 16 of 166 17 FIR No. 121/09 PS - Sultan Puri same were taken into possession by the IO ASI Rajender Singh vide memo Ex. PW6/A which bears his signature at point 'A'. IO recorded his statement.

PW7 - W/Constable Raj Kumari who deposed that on 05/04/2009, she was present at PS - Sultan Puri. At about 2:30 p.m. on the direction of the then SHO PS - Sultan Puri, she accompanied the IO SI Mukesh Rana and the accused Sazid present in the Court (correctly identified by the witness) who was in the custody of Constable Devender (Be read as 'Ravinder') with SI Mukesh and one girl namely prosecutrix (name withheld) who was also taken from the PS in her custody to SGM Hospital for medical examination where they were medically examined. After the medical examination of the prosecutrix Doctor handed over two pullindas sealed with the seal of SGMH and one sample seal of the same specimen to IO in her presence and the same were taken into possession by the IO ASI Rajender Singh vide memo Ex. PW7/A which bears her signature at point 'A'. IO recorded her statement.

PW8 - Constable Satender who deposed that on 17 of 166 18 FIR No. 121/09 PS - Sultan Puri 28/04/2009, he was posted at PS - Sultan Puri. On that day, on the direction of the IO, SI Ashok Kumar, he received the exhibits in the present case from MHC(M) of PS - Sultan Puri at about 9:00 a.m. in sealed condition vide RC No. 27/21/09 and deposited the same at FSL, Rohini. Thereafter, he handed over the copy of RC and of receiving issued by FSL to MHC(M) on the same day at about 12:00 noon. IO recorded is statement in this case on the same day at PS - Sultan Puri. So long as these exhibits remained in his possession, the same were not tampered with in any manner.

PW9 - HC Rajesh Kumar Chauhan who deposed that on the intervening night of 0203/04/2009, he was posted at PS - Sultan Puri. On that day, he was working as Duty Officer from 12:00 mid night to 8:00 a.m. and he received information at about 1:10 a.m. (night) on wireless from wireless operator regarding the missing of one girl namely prosecutrix (name withheld) D/o Ajit aged about 16 years and he recorded this message in the daily diary vide DD No. 3A, true copy of the same is Ex. PW4/A which is in his hand. He has brought the original DD Register (seen and returned). The contents of the DD was informed 18 of 166 19 FIR No. 121/09 PS - Sultan Puri to ASI Rajender to take necessary action. At about 3:45 p.m., Constable Radhey Shyam came to him in DO room and handed over the rukka sent by ASI Rajender Singh for the registration of the case. He dictated the contents of the same to Computer Operator to record the FIR and the same was recorded. He has brought the original FIR which is dictated by him and bears his signature. Photocopy of the same is Ex. PW9/A. He also made endorsement Ex. PW9/B on the rukka regarding the registration of the present FIR which bears his signature at point 'A'. After the registration of the case, he handed over original rukka and copy of FIR to Constable Radhey Shyam to deliver the same to IO (Original FIR seen and returned).

PW10 - ASI Rajinder Singh is the initial Investigating Officer (IO) of the case who deposed that on 03/04/2009, after receiving DD No. 3A, true copy of the same is Ex. PW4/A, he reached at House No. F2/222, Shani Bazar Road, Sultan Puri, Delhi where one Ajit Kumar S/o Prafull Kumar told him about the incident of his daughter namely prosecutrix (name withheld) aged about 1415 years by one Sazid S/o Shafi Ahmed. He recorded his statement Ex. PW2/A which was 19 of 166 20 FIR No. 121/09 PS - Sultan Puri signed by him at point 'A', the same was duly attested by him (PW10) at point 'B'. Thereafter, he prepared rukka Ex. PW10/A which bears his signature at point 'A'. Rukka was sent to PS through Constable Radhey Shyam for registration of the case on the basis of which present case was registered. After registration of the case Constable Radhey Shyam reached to the spot and handed over the original rukka and copy of FIR to him. Thereafter, they searched for the accused and prosecutrix but did not find any clue on that day. Thereafter, they returned to the PS. On 04/04/2009, he alongwith Constable Radhey Shyam left the PS in search of the prosecutrix and the accused. During investigation, he came to know that the accused Mustakeem is also involved in the present incident, therefore, he also searched for him. When he was in the area in search of the accused persons one secret informer met him and informed that the accused Mustakeem is present at his house at Aman Vihar and if raid is conducted he can be apprehended. Thereafter, Complainant also joined them and they reached to House No. 219, Aman Vihar, where accused Mustakeem was apprehended at the instance of the informer in the presence of the complainant at about 7:25 p.m. vide arrest memo Ex. PW2/A which bears his signature at point 'A' and his personal search was 20 of 166 21 FIR No. 121/09 PS - Sultan Puri also taken by him vide memo Ex. PW2/E which bears his signatures at point 'A'. Disclosure statement of the accused was recorded by him Ex. PW2/E1 which bears his signatures at point 'C', accused signed the same at point 'X'. Accused confessed his involvement in the present case alongwith one other accused Sazid. Thereafter, accused was taken to the PS and sent to the lockup. Next day, he was produced before the Learned MM and was sent to the JC. Thereafter, he searched for the accused Sazid and prosecutrix. On 05/04/2009, he was present in the Rohini Courts Complex as he had to appear before Learned Duty MM on that day. He received information on phone from Sh. Mahender Singh Khatri, the then SHO PS - Sultan Puri regarding the arrival of accused Sazid and the prosecutrix (name withheld) at PS - Sultan Puri and he also informed him that both were taken to SGM Hospital by SI Mukesh, W/Constable Raj Kumari and Constable Ravinder Kumar. Thereafter, he directly reached to SGM Hospital where he found accused Sazid and prosecutrix admitted there. He collected their MLCs. Doctor handed over two pullindas sealed with the seal of SGMH, Govt. of NCT Delhi and one sample seal of same specimen pertaining to the medical examination of the accused Sazid, the same were taken into possession 21 of 166 22 FIR No. 121/09 PS - Sultan Puri by him vide memo Ex. PW10/B which bears his signatures at point 'A', Constable Ravinder signed the same at point 'B'. On the same day, Doctor also handed over two other pullindas and one sample seal sealed with the same seal pertaining to the medical examination of accused Sazid, same were taken into possession vide memo Ex. PW6/A which bears his signatures at point 'B'. Doctor handed over two pullindas and one sample seal sealed with the seal of SGMH pertaining to the medical examination of the prosecutrix (name withheld), those pullindas were containing undergarments etc. of prosecutrix and the same were taken into possession by him vide memo Ex. PW7/B (be read as PW7/A) which bears his signature at point 'C'. At the same time, Doctor handed over the other two pullindas and one sample seal sealed with the same seal mentioned above pertaining to the medical examination of the prosecutrix and the same were taken into possession by memo Ex. PW10/C which bears his signatures at point 'A', lady Constable Raj Kumari signed the same at point 'B'. SI Mukesh handed over one all out small bottle to him in the Emergency Ward of SGM Hospital and he told him that the same was handed over to him by the accused Sazid (objected to) and the same were taken into possession after sealing the same with 22 of 166 23 FIR No. 121/09 PS - Sultan Puri the seal of 'RS' vide memo Ex. PW10/D which bears his signatures at point 'A', Constable Ravinder at point 'B', SI Mukesh at point 'C'. As accused Sazid and prosecutrix were admitted so accused Sazid was not arrested by him on that day. He gave direction to the Duty Constable on duty at SGM Hospital to guard the accused as well as the prosecutrix till their discharge from the Hospital. He recorded the statement of the witness on that day u/s 161 Cr.P.C. He returned to the Hospital. Case property was deposited by him in the Malkhana. He recorded the statement of the prosecutrix (name withheld) in the Hospital on 05/04/2009 as Doctor has declared her fit for statement. During the course of investigation Ajit Kumar, Complainant handed over a photocopy of birth certificate issued by MCD Mark 'A' and photocopy of School Leaving Certificate of prosecutrix (name withheld) mark 'B' to him and the same were taken into possession by him vide memo Ex. PW2/C (be read as Ex. PW2/B) and PW2/C both signed by him at point 'C'. On 08/04/2009, he reached to SGM Hospital where he came to know that the prosecutrix and accused were discharged from the Hospital and accused Sazid was present there and prosecutrix was stated to be gone to her parents house. Accused Sazid present in the Court (correctly 23 of 166 24 FIR No. 121/09 PS - Sultan Puri identified by the witness) was taken by him to the PS - Sultan Puri where he was arrested by him at about 6:00 p.m. vide arrest memo Ex. PW3/B which bears his signatures at point 'B'. His personal search was taken vide memo Ex. PW3/C which bears his signature at point 'C'. Accused made disclosure statement Ex. PW3/A which bears his signature at point 'B', accused signed the same at point 'X'. Thereafter, accused was kept in the lockup and next day he was produced before the Learned MM and was sent to the JC. During the course investigation remained with him he recorded the statement of the witnesses. Thereafter, the investigation was entrusted to SI Ashok Kumar of PS - Sultan Puri on the directions of the Senior Officer. He can identify the All Out bottle if shown to him. However, he could not tell the colour of the said bottle due to lapse of time, however, All Out was written on the bottle. He correctly identified one bottle of All Out type, but there is no lable of All Out or impression on the same that the same bottle was handed over to him by SI Mukesh as Ex. P1.

PW11 - Raman Kumar, SubRegistrar, Birth and Death, MCD, Najafgarh Zone, Delhi who deposed that he has brought the 24 of 166 25 FIR No. 121/09 PS - Sultan Puri summoned record pertaining to the date of birth of prosecutrix (name withheld) D/o Sh. Ajit Kumar R/o H1/367, Sultan Puri, Delhi. As per record, the date of birth of baby/prosecutrix (name withheld) is 10/07/1993. He has brought the original birth register. The photocopy of the said entry is Ex. PW11/A (original seen and returned).

PW12 - SI Mukesh Rana who deposed that on 05/04/2009, he was posted at PS - Sultan Puri. On that day, prosecutrix (name withheld) and accused Sazid had come to PS - Sultan Puri. On the direction of the then SHO Inspector Mahender Singh Khatri, accused and prosecutrix alongwith Lady Constable Raj Kumari and Constable Ravinder were taken to SGM Hospital by him where prosecutrix and accused were got admitted by him in the Hospital. Thereafter, ASI Rajender from PS - Sultan Puri reached in the Hospital. He briefed him about the above mentioned facts. Thereafter, he was relieved by ASI Rajender from the Hospital.

PW13 - Sunil Kumar, Lab. Assistant, Government Sarvodaya Kanya Vidhalya, Delhi who deposed that he has brought the 25 of 166 26 FIR No. 121/09 PS - Sultan Puri summoned record pertaining to the admission and date of birth of prosecutrix (name withheld) D/o Ajit Kumar, R/o F2/222, Shani Bazar Road, Sultan Puri, Delhi. As per record, prosecutrix (name withheld) was admitted in 9th Class in above mentioned School (Sarvodaya Kanya Vidhalaya, Delhi) on 08/05/2007 vide admission no. 7776/New and as per admission register, the date of birth of prosecutrix (name withheld) is mentioned as 10/07/1993. He has brought the original admission register. The photocopy of the same is Ex. PW13/A (original seen and returned). Prosecutrix (name withheld) was admitted in Class 9th on the basis of the School Leaving Certificate issued by R. R. Geeta, Bal Bharti Public School, Sultan Puri, Delhi - 110086. He has brought the original School Leaving Certificate mentioned above and photocopy of the same is Ex. PW13/B which was certified by Principal Smt. Neelam Sehrawat who signed the same at point 'A' in his presence (original seen and returned). He has brought the certificate issued by Mrs. Neelam Sehrawat regarding the date of birth of prosecutrix (name withheld) which was signed by her at point 'A' in his presence and the said certificate is Ex. PW13/C. 26 of 166 27 FIR No. 121/09 PS - Sultan Puri PW14 - Sh. S. S. Malhotra, Learned ADJ, Karkardooma Courts, Delhi who deposed that on 21/04/2009, he was posted as MM at Rohini Courts and was working as Link Court of Sh. Naveen Gupta, Learned MM. On that day, an application was moved by the IO was assigned to him to record the statement of prosecutrix (name withheld) D/o Ajit Kumar, aged about 15½ years, u/s 164 Cr.P.C. Witness/prosecutrix (name withheld) was produced before him by the IO SI Ashok and was correctly identified by him, who had come with her mother from her house. The signature of the IO were obtained in this regard. He asked some rational questions to the victim about her age and about the name of her parents etc. so as to ascertain the volunteerness of the witness. Thereafter, he was satisfied that the victim was making her statement voluntarily and without any pressure and she is competent to depose. Therefore, he recorded statement of prosecutrix (name withheld). The statement u/s 164 Cr.P.C. of witness/prosecutrix (name withheld) is Ex. PW14/A (also Ex. PW1/A1 to Ex. PW1/A3 in the evidence of PW1 prosecutrix) which bears his signatures at point 'A' and prosecutrix (name withheld) signed the same at points 'B' and 'C'. He certified regarding the correctness of the statement. The certificate 27 of 166 28 FIR No. 121/09 PS - Sultan Puri thereof is Ex. PW14/B which bears his signatures at point 'A'. IO moved an application for obtaining the copy of the proceedings and the same was allowed which bears his signatures at point 'A'. He directed the Ahlmad of the Court to keep the statement of the prosecutrix and the application mentioned above in a sealed covet after supplying the copy of the same to the IO. His said direction is Ex. PW14/C which bears his signature at point 'A'.

PW15 - Dr. Sanjay Jain, Casualty Incharge, SGM Hospital, Mangol Puri, Delhi who deposed that he was deputed by Dy. Medical Superintendent, SGM Hospital on behalf of Dr. Neeraj and Dr. Mandeep, who had left their services and their present whereabouts are not known to the Hospital. After examining the patient/prosecutrix (name withheld), MLC No. 3747 dated 05/04/2009 was referred to SR Gynae for opinion. MLC No. 3748 of Sazid dated 05/04/2009 was prepared by Dr. Neeraj, who has left his services and his present whereabouts are not known. He can identify the handwriting and signatures of MLC No. 3748 and 3747 of Dr. Neeraj and Dr. Mandeep as per records available in the Hospital. MLCs are now Ex. PW15/A and B (Ex. PW15/B) 28 of 166 29 FIR No. 121/09 PS - Sultan Puri respectively.

PW16 - Dr. Ritu Singhal, Medical Officer, SGM Hospital, Mangol Puri, Delhi who deposed that she has been deputed by the MS on behalf of Dr. Sangeeta, who had left her services from SGM Hospital. On 05/04/2009 at about 3:15 p.m., prosecutrix (name withheld) was referred for SR Gynae. Accordingly, Dr. Sangeeta examined her vide MLC No. 3747, Gynaecologically. Her medical examination report from point 'X' to 'X' on the said MLC is Ex. PW16/A which bears her signatures at point 'B'. She identify her handwriting and signatures as she has worked with her.

PW17 - SI Ashok is the subsequent Investigating Officer (IO) of the case who after refreshing his memory with the permission of the Court deposed that in the year 2009, he was posted in PS - Sultan Puri. On 09/04/2009, the investigation of this case was marked to him by SHO, Sultan Puri. He had gone through the case file. Accused Sazid was produced before concerned MM Court and was sent to JC. On the very same day, he filed the application for cancellation of bail of accused 29 of 166 30 FIR No. 121/09 PS - Sultan Puri Mustakim before Court concerned. On 13/04/2009, accused Mustakeem present in the Court was rearrested u/s 366 IPC with the permission of the Court. On 21/04/2009, statement of prosecutrix was got recorded u/s 164 Cr.P.C. from the Court concerned. During investigation, he got deposited the exhibits in FSL, Rohini and collected the report. Same is Ex. PW17/A. During investigation he took the NBW of brother of accused Sazid but despite his best efforts he could not be arrested. He recorded the statement of witnesses and after completion of investigation, he filed the chargesheet in the Court. Thereafter, he was transferred.

PW18 - HC Krishan Lal is the MHC(M) who deposed that on 05/04/2009, he was posted in PS - Sultan Puri as MHC(M). On that day, ASI Rajender Singh deposited nine sealed pullindas which were sealed with the seal of SGMH alongwith sample seal and FSL Form. He made the relevant entry in Register No. 19 at Serial No. 11854. Copy of the same is Ex. PW18/X (OSR). On 24/04/2009, he was posted as MHC(M) at PS - Sultan Puri. On that day, he handed over four pullindas which were sealed with the seal of SGMH alongwith sample seal and 30 of 166 31 FIR No. 121/09 PS - Sultan Puri FSL Form to Constable Sukhbir Singh vide RC No. 269/21/08 which is Ex. PW18/A bearing his signature at point 'A' as well as of Constable Sukhbir at point 'B' (OSR) with a direction to deposit the same in FSL, Rohini as per directions of the IO. After depositing the pullindas, Constable Sukhbir handed over to him acknowledgment of acceptance of parcel. Same is Ex. PW18/B (OSR). So long as the pullindas remained in his custody, same were not tampered in any manner. On 28/04/2009, he handed over five pullindas which were sealed with the seal of SGMH alongwith sample seal and FSL Form to Constable Satender vide RC No. 271/21/08 which is Ex. PW18/C bearing his signature at point 'A' as well as of Constable Satender at point 'B' (OSR) with a direction to deposit the same in FS, Rohini as per directions of the IO. After depositing the pullindas Constable Satender handed over to him acknowledgment of acceptance of parcel. Same is Ex. PW18/D (OSR). So long as the pullindas remained in his custody, same were not tampered in any manner.

PW19 - Dr. Manoj Dhingra, MOIC, Sanjay Gandhi Memorial Hospital, Delhi who deposed that he has seen the MLC No. 31 of 166 32 FIR No. 121/09 PS - Sultan Puri 3748 of Sazid S/o Shafi Ahmed dated 05/04/2009. After going through the MLC and after examination of the patient in his opinion there is nothing to suggest that patient is incapable of performing sexual intercourse. The MLC was already Ex. PW15/A which is in the handwriting of Dr. Deepak.

PW20 Dr. Manoj Dhingra, MOIC, Sanjay Gandhi Memorial Hospital, Delhi who deposed that he has been deputed by MS to identify the handwriting and signatures of Dr. Neeraj Kumar, SR, Medicine, SGM Hospital who has now left the Hospital and his whereabouts are not known as per the record of the Hospital. He had gone through the MLC No. 3743 of patient/prosecutrix (name withheld), she was referred by CMO to Doctor Neeraj Kumar with the alleged history of absconding from her house since 02/04/2009 around 9:30 to 10:00 p.m. as told by ASI Rajender Singh as well as there was alleged history ingestion of some unknown substance 3040 minutes back. History of vomiting. Patient was managed conservatory and kept under observations in casualty. Dr. Neeraj Kumar made endorsement at point 'A' on MLC Ex. PW2/A. He has also been deputed to identify the 32 of 166 33 FIR No. 121/09 PS - Sultan Puri handwriting and signatures of Dr. Mandeep Kaur, JR, SGM Hospital who has now left the Hospital and her whereabouts are not known as per the record of the Hospital. In the MLC Ex. PW2/A, Dr. Mandeep Kaur recorded the alleged history, general condition of the patient and locally examined the patient which bears the signatures of aforesaid Doctor at point 'A'. He has also gone through MLC Ex. PW2/B of patient Sazid referred by CMO to Dr. Neeraj brought by SI Rajender Singh with alleged history of absconding from house from 02/04/2009 at around 9:3010:00 p.m. as well as alleged history of ingestion of some unknown substance. The patient Sazid was managed conservatory and kept in casualty. Dr. Neeraj Kumar made endorsement at encircled portion 'A' on MLC of Sazid Ex. PW2/B which bears his signature at point 'X'. Both patients were advised for gastric lavage and blood sample for toxicology screening.

The testimonies of the prosecution witnesses shall be dealt with in detail during the course of appreciation of evidence.

6. Statements of both the accused Sazid and Mustakim were 33 of 166 34 FIR No. 121/09 PS - Sultan Puri recorded u/s 313 Cr.P.C. wherein they pleaded innocence and false implication. Both the accused opted to lead defence evidence. Accused Sazid examined four witnesses in his defence namely DW1 - Constable Ved Pal, DW3 - HC Sajjan Singh, DW4 - Smt. Gulshan and DW5 - Neeraj while accused Mustakeem examined only one witness in his defence namely DW2 - Sharafat.

DW1 - Constable Ved Pal, who deposed that he is a summoned witness and he has brought the order of Addl. Dy. Commissioner of Police (GA) Police Control Room, Delhi. As per order dated 02/08/2012 of Addl. Dy. Commissioner of Police (GA), old record of PCR/zones and line/PCR Unit were destroyed. Copy of said order is Ex. DW1/A and certification of destruction of record is Ex. DW1/B. Therefore summoned record is not available in the RecordRoom.

DW2 Sharafat who deposed that he is a driver by way of profession and driving the truck. In January - April 2009, he was driving the truck bearing No. HR38 H7291. He knows Mustakeem as he is his brother inlaw and was working with him as labour since 34 of 166 35 FIR No. 121/09 PS - Sultan Puri January, 2009. Mustakeem was with him on 02/04/2009 and 03/04/2009 as they went to Gurgaon for delivering the breaks there. On 03/04/2009, he received a telephonic call from his fatherinlaw namely Riaz Ahmad who narrated him that one case is registered against Sazid in PS Sultan Puri. He narrated the same to Mustakeem. Thereafter, Mustakeem left Gurgaon and reached at Delhi at his house.

DW3 HC Sajjan Singh, who deposed that he is a summoned witness and he has brought the summoned record i.e Rojnamcha register pertaining to DD no. 14 A and 22 A both dated 26/07/08 and of PS Nangloi. Photocopy of said DD's are Ex. DW3/A and Ex. DW3/B (OSR).

DW4 Smt. Gulshan, who deposed that she knows tailoring and does the work of tailoring at her home. Her daughter namely Farrah got engaged with Sazid on 17/04/2008. After few days of engagement of Farrah, one girl came to her home and inquired about Farrah. On her inquiry she told her that she is prosecutrix (name withheld) and she is friend of Farrah. She asked her to call Farrah as she wants to meet 35 of 166 36 FIR No. 121/09 PS - Sultan Puri Farrah. Thereafter, she (DW4) called Farrah and she went inside and started her work. After about five minutes she came outside and saw that prosecutrix (name withheld) is threatening her daughter Farrah to dissolve her engagement with Sazid because she (prosecutrix) loves Sazid. She (prosecutrix) also threatened to Farrah that "if you will not break your engagement with Sazid both of you will face dire consequences". Thereafter, she (DW4) rebuked her and she (prosecutrix) left their house. Thereafter, she told about this incident to Sazid, he told her that prosecutrix (name withheld) was his friend but there is no friendship between them. On the assurance of Sazid she became tension free, therefore she did not take any action against prosecutrix (name withheld). On 03/04/2009 Sazid came to her house and he stayed there for two days. On 05/04/2009, they came to know that a false case was registered against Sazid and she advised Sazid to go Police Station and he went to PS Sultan Puri.

DW5 - Neeraj who deposed that he is a photographer by profession and doing job at Juneja Studio, MP Market, Shop No. 33, Pitampura, Delhi. He has seen photograph Ex. PW1/DA and the same 36 of 166 37 FIR No. 121/09 PS - Sultan Puri was clicked by him in the Juneja Studio.

The testimonies of the defence witnesses shall be dealt with in detail during the course of appreciation of evidence.

7. Learned Counsel for accused Mustakeem submitted that the prosecutrix stated in her statement u/s 164 Cr.P.C. that when she went to the stationery shop for purchasing the stationery item in the way accused Mustakeem and coaccused Sazid were not standing but when she left from the shop accused Sazid was standing inside the road with the motorcycle and the said bike was off and when she reached near the motorcycle accused Sazid press to the prosecutrix for sitting on his motorcycle then the prosecutrix was sit on his motorcycle and after her sitting accused Mustakeem sit behind the prosecutrix. He submitted that the prosecutrix has clearly stated in her examination that when she went to the stationery shop accused Sazid was not standing there and when she left from the said shop accused Mustakeem was not standing there and she stated only accused Sazid standing there and he pressed to prosecutrix for sitting on his motorcycle. He submitted that the 37 of 166 38 FIR No. 121/09 PS - Sultan Puri prosecutrix has clearly stated in her crossexamination that she does not know whether the stationery shop was open or not and she has further clearly stated that the said shop was situated in the market and various persons were coming and going in the said market. He submitted that when the prosecutrix left her house her mother and sister were also present at her house but she did not disclose whether she is going to market for purchasing the stationery items or not. He submitted that when she sat on the motorcycle she did not raise any alarm in the process when she was sitting on the bike. He submitted that the prosecutrix stated that after sitting on the motorcycle accused Mustakeem sat in the back side on the motorcycle and the said Mustakeem put something in front of the nose of the prosecutrix then she become unconscious. He submitted that nothing is on record any material evidence whether Mustakeem put something in front of nose of the prosecutrix. He further submitted that as per the prosecutrix accused Sazid and accused Mustakeem went to Baghpat by the said motorcycle with the prosecutrix. Learned Counsel submitted that in (on) the way from Sultan Puri to District Baghpat U.P. various red light were coming and is it possible that the traffic Police officials and other Police official were not present 38 of 166 39 FIR No. 121/09 PS - Sultan Puri on the red lights so it is not possible that three persons sit on one motorcycle and going to District Baghpat U.P. after crossing the border of Delhi when the prosecutrix has stated that she was in unconscious condition. He further submitted that as per the prosecutrix she was conscious in the Baghpat, U.P. at the house of sister of accused Mustakeem, on the next day in the morning time, the prosecutrix requested to accused Sazid and Mustakeem for releasing herself for going to her house but the prosecutrix has clearly stated in her examination that she did not state to the sister, Jija of accused Mustakeem for releasing herself for going to her house and they forcibly abducted herself. So it clearly points that the prosecutrix manipulated the whole story. He further submitted that the accused Mustakeem was doing a job work at the Truck at District Baghpat, U.P. prior to the said incident in this regard accused Mustakeem produced the defence evidence and the witness namely Sh. Sarafat clearly stated before the Court that on that day accused Mustakeem was going to labour work at the Truck with him and he received a telephonic call from the father of Mustakeem then he alongwith accused Mustakeem reached at Delhi and he produced Mustakeem to the Police so it clearly shows that accused 39 of 166 40 FIR No. 121/09 PS - Sultan Puri Mustakeem did not commit any offence with prosecutrix because if he had committed any offence then why he would have surrendered before the Police of PS Sultan Puri, he himself approached the Police Station for getting the natural justice. He further submitted that as per the prosecutrix statement, the prosecutrix stayed at the house of the sister of the Mustakeem at Baghpat, U.P. only one night and no any offence under Section 376 IPC was committed. She alongwith coaccused Sazid when came at Delhi then they stayed at the house of the brother of coaccused Sazid then the said offence was committed with the prosecutrix as per alleged history. He further submitted that when the prosecutrix reached at the Police Station at Sultan Puri then before W/Constable Raj Kumari prosecutrix stated that if they can not live together (with accused Sazid) but they can finish their life together (accused Sazid) in this regard W/Constable Raj Kumari has stated in her statement u/s 161 Cr.P.C. and the concerned IO also mentioned it in the chargesheet and in this regard the matter was also published in the newspaper. The copy of the said newspaper has also been filed by the accused Mustakeem on the record. He further submitted that the prosecutrix got recorded her statement u/s 164 Cr.P.C. from the custody of her parents after 8 days of the discharge 40 of 166 41 FIR No. 121/09 PS - Sultan Puri from the Hospital so it is possible that afterthought the prosecutrix got recorded her statement u/s 164 Cr.P.C. against the accused persons because the prosecutrix and main accused Sazid belong to different religions/castes so due to the pressure of her parents prosecutrix got recorded her statement u/s 164 Cr.P.C. and before the Court. He further submitted that main accused Sazid and prosecutrix were well known to each other and they used to meet prior to the said incident, the said fact prosecutrix admitted in her crossexamination so the prosecutrix and accused Sazid were well known to each other and they wanted to marry but they could not succeed. Accused Mustakeem is the friend of accused Sazid and the prosecutrix wanted the help from accused Mustakeem for her marriage but accused Mustakeem did not agree due to this reason the prosecutrix intentionally implicated the accused Mustakeem in the present case. He further submitted that the charge against accused Mustakeem was framed under sections 363/366/328/34 IPC. Learned Counsel stated that when the prosecutrix herself was sitting on the bike of the accused Sazid as per her statement then the said offence under section 363 IPC is not made out against accused Mustakeem when the prosecutrix herself went to the Baghpat, Meerut, Agra, U.P. as well as 41 of 166 42 FIR No. 121/09 PS - Sultan Puri lastly Delhi with accused Sazid (as per alleged history) then the offence under section 366 is not made out against accused Mustakeem because accused Mustakeem never compelled her to marry with accused Sazid and when the prosecutrix was sitting on the motorcycle of accused Sazid and after her sitting accused Mustakeem was sit in the back side of prosecutrix on the motorcycle and put something in front of nose of the prosecutrix but there is no evidence on the record in the regard so it is settled law without any evidence the accused cannot be punished, in this regard there are various judgments of Hon'ble High Court and Supreme Court, the offence under section 328 IPC is also not made out against accused Mustakeem. He further submitted that the prosecution has failed the prove its case beyond reasonable doubts and prayed for the acquittal of accused Mustakeem on all the charges levelled against him.

8. Learned Counsel for accused Sazid submitted that there are many substantial contradictions and improvements in the statement of the prosecutrix, in the statements recorded u/s 161 Cr.P.C., u/s 164 Cr.P.C. and Evidence recorded before Court, therefore statement of the prosecutrix can not be relied upon. He further submitted that from the 42 of 166 43 FIR No. 121/09 PS - Sultan Puri chargesheet/Final report u/s 173 Cr.P.C. (Page 4) Bottom last two lines - it is crystal clear that the accused himself brought the prosecutrix to the Police Station and at that time prosecutrix gave her first statement to W/Constable Raj Kumari that she voluntarily left her house therefore version of accused Sazid seems to be absolutely correct as such accused is not guilty u/s 363/34 IPC. He further submitted that prosecutrix admitted the writing on Ex. PW1/DB, the afterthought story of the prosecutrix can not be relied upon that she under threat wrote that letter as she did not allege regarding threat/writing of that letter in her statement recorded under section 161 Cr.P.C. or u/s 164 Cr.P.C. or in her examinationinchief. He further submitted that prosecutrix admitted her photograph Ex. PW1/DA. Which is sufficient to show that she was close friend of Sazid as such the story of the prosecution regarding kidnapping etc. is totally false. DW5 - Neeraj also supported the version of accused Sazid. He further submitted that the prosecutrix's father was also aware about her friendship with accused Sazid therefore he got cut her name from School in the mid of session and get her admitted in School of open learning so that he can keep an eye on his daughter. Prosecutrix gave a false evidence regarding her illness and gave a false excuse that due to 43 of 166 44 FIR No. 121/09 PS - Sultan Puri short attendance, her name got struck from the School. Relied upon the Court observation dated 27/03/2010 (in crossexamination of the prosecutrix page 1) and Court observed that her attendance in School was 80/86 therefore it is clear that prosecutrix is deliberately gave false evidence. The friendship of prosecutrix is also clear from the bare perusal of the FIR. He further submitted that in her statement recorded u/s 161 Cr.P.C. (Mark DA) she admitted her love affair with the accused Sazid. She stated that she wants to marry Sazid. She was confronted in her crossexamination dated 15/02/2010. He further submitted that the prosecutrix alleged in her statement recorded u/s 161 Cr.P.C. that the accused committed sexual relationship in a hotel at Meerut thereafter in the statement u/s 164 Cr.P.C. alleged that accused committed rape at the house of his brother in Nangloi. This is a big Contradiction and improvement and goes to the root of the prosecution case and establishes that whole case is a false case. He further submitted that no site plan/map was prepared of the alleged house, where rape was alleged to be committed. Not even any such house was identified. He further submitted that the statement in the examinationinchief of the prosecutrix is not possible that the accused slapped her at Meerut 44 of 166 45 FIR No. 121/09 PS - Sultan Puri Railway Station and train in which they travelled is empty. Her statement that accused developed friendship with some unknown person and then travelled to unknown place in UP is again unbelievable in any possibility. He further submitted that the allegation of the prosecutrix that accused travelled with prosecutrix in public transport and prosecutrix remained silent out of fair (fear) is totally unreliable as she stated that at Gwalior, once he (she) threatened the accused that she is going to make hue and cry, accused accepted to brought her back to her parents and boarded a train for Delhi then why again she remained silent in other public transport is highly unbelievable. No direct bus between any town of UP to the Nangloi. He further submitted that the description, timing and purpose of the visit of the prosecutrix to the alleged stationery shop is selfcontradictory. He further submitted that it is next to impossible that two boys travelled with a girl (alleged to be unconscious) in (on) a bike from Delhi to UP and no Traffic Police of (or) public witness report this matter to Police. He further submitted that there is no public witness in this matter. He further submitted that the prosecutrix herself told to the medical officers/Doctor her age as 17 years in her medical therefore her age is not less than 17 years. He further 45 of 166 46 FIR No. 121/09 PS - Sultan Puri submitted that the evidence of all prosecution witnesses are contradictory. He further submitted that from the evidence of DW3 - HC Sajjan Singh, it is clear that in her School, prosecutrix called Sazid, when the Teacher got mobile from her and then Teacher reported this matter to Police but the prosecutrix denied all such suggestion to conceal the facts. He further submitted that accused Sazid is innocent and has been falsely implicated and the prosecution has failed to prove its case and prayed for the acquittal of accused Sazid on all the charges levelled against him.

9. 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.

10. I have heard Ms. Nimmi Sisodia, Learned Addl. PP for the State and Sh. Jitender Mehta, Learned Counsel for accused Sazid and Sh.

46 of 166 47 FIR No. 121/09 PS - Sultan Puri S. A. Rajput, Learned Counsel for the accused Mustakeem and have also carefully perused the entire record.

11. The charge for the offences u/s 363/34, 366/34, 376 IPC 328/34 and u/s 309 IPC against both the accused Sazid and Mustakeem is that on 02/04/2009, at about 2:30 p.m. to 10:00 p.m. at House No. F2/222, Shani Bazar Road, Sultan Puri, Delhi within the jurisdiction of PS - Sultan Puri, they both in furtherance of their common intentions kidnapped the prosecutrix (name withheld being case u/s 376 IPC), D/o Ajit Singh (complainant), aged about 15½ years, from her legal guardianship without their consent and that on the abovesaid date, time and place they both in furtherance of their common intentions after abducting/kidnapping the prosecutrix, by criminal intimidation/method of compulsion induced the said prosecutrix to intent that she may be compelled to marry with accused Sazid and that after 02/04/2009, accused Sazid committed sexual intercourse with prosecutrix against her will and without her consent and that on the above stated date, time and place and above stated manner both the accused in furtherance of their common intentions administered to the prosecutrix certain stupefying 47 of 166 48 FIR No. 121/09 PS - Sultan Puri substance with intention to commit or facilitate the commission of offence of kidnapping for the purpose of marriage and that on the way from the house of Md. Nafees brother of accused Sazid to the Police Station - Sultan Puri, accused Sazid attempted to commit suicide by consuming "ALL OUT LIQUID".

12. 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

13. PW2 - Sh. Ajit Kumar is the father of the prosecutrix who proved her statement made to the Police Ex. PW2/A and proved the seizure memo of the copy of the date of birth certificate of his daughter/prosecutrix Ex. PW2/B, copy of birth certificate mark 'A', proved the seizure memo of the photocopy of the School Leaving Certificate of his daughter/prosecutrix Ex. PW2/C, photocopy of the 48 of 166 49 FIR No. 121/09 PS - Sultan Puri School Leaving Certificate mark 'B'.

During his crossexamination, PW2 - Sh. Ajit Kumar negated the suggestions that he has concealed the facts deliberately regarding the admission of School or that the Birth Certificate, mentioned above, is a forged one. Vol. It can be verified, if required.

PW11 - Raman Kumar, SubRegistrar, Birth and Death, MCD, Najafgarh Zone, Delhi has deposed that he has brought the summoned record pertaining to the date of birth of prosecutrix (name withheld) D/o Sh. Ajit Kumar R/o H1/367, Sultan Puri, Delhi. As per record, the date of birth of baby/prosecutrix (name withheld) is 10/07/1993. He has brought the original birth register. The photocopy of the said entry is Ex. PW11/A (original seen and returned).

PW13 - Sunil Kumar, Lab. Assistant, Government Sarvodaya Kanya Vidhalya, Delhi has deposed that he has brought the summoned record pertaining to the admission and date of birth of prosecutrix (name withheld) D/o Ajit Kumar, R/o F2/222, Shani Bazar Road, Sultan Puri, Delhi. As per record, prosecutrix (name withheld) 49 of 166 50 FIR No. 121/09 PS - Sultan Puri was admitted in 9th Class in above mentioned School (Sarvodaya Kanya Vidhalaya, Delhi) on 08/05/2007 vide admission no. 7776/New and as per admission register, the date of birth of prosecutrix (name withheld) is mentioned as 10/07/1993. He has brought the original admission register. The photocopy of the same is Ex. PW13/A (original seen and returned). Prosecutrix (name withheld) was admitted in Class 9th on the basis of the School Leaving Certificate issued by R. R. Geeta, Bal Bharti Public School, Sultan Puri, Delhi - 110086. He has brought the original School Leaving Certificate mentioned above and photocopy of the same is Ex. PW13/B which was certified by Principal Smt. Neelam Sehrawat who signed the same at point 'A' in his presence (original seen and returned). He has brought the certificate issued by Mrs. Neelam Sehrawat regarding the date of birth of prosecutrix (name withheld) which was signed by her at point 'A' in his presence and the said certificate is Ex. PW13/C. There is nothing in the crossexamination of PW2 - Ajit Kumar, PW11 - Raman Kumar and PW13 - Sunil Kumar, so as to impeach their creditworthiness. Nor any evidence to the contrary has been produced or proved on the record on behalf of the accused.

50 of 166 51 FIR No. 121/09 PS - Sultan Puri In the circumstances, it stands proved on the record that the date of the birth of the prosecutrix is 10/07/1993.

As the date of alleged incident is 02/04/2009 and the date of birth of prosecutrix is 10/07/1993, on simple arithmetical calculation, the age of prosecutrix comes to 15 years, 08 months and 22 days as on the date of incident on 02/04/2009.

The Hon'ble Supreme Court in case State of Maharashtra Vs. Gajanan Hemant Janardhan Wankdhede (2008) 8 SCC 38 has held as under : "13. .....On the basis of the evidence of the Headmaster and the original school leaving certificate and the school register which were produced the High Court came to abrupt conclusion that normally for various reasons the guardians to understate the age of their children at the time of admission in the school. There was no material or basis for coming to this conclusion. The High Court in the absence of any evidence to the contrary should not have come to hold that the date of birth of the prosecutrix was not established and the school leaving certificate and the school register are not conclusive.

14. Interestingly, no question was put to the victim in cross examination about the date of birth. The High Court also noted that no 51 of 166 52 FIR No. 121/09 PS - Sultan Puri document was produced at the time of admission and a horoscope was purportedly produced. There is no requirement that at the time of admission documents are to be produced as regards the age of the student....."

In view of above and in the circumstances, it stands established on record that PW1 prosecutrix was aged 15 years, 08 months and 22 days as on the date of alleged incident on 02/04/2009.

14. Learned Counsel for accused Sazid submitted that the prosecutrix herself told to the medical officers/Doctor her age as 17 years in her medical therefore her age is not less than 17 years.

I have carefully perused and analysed the evidence on record.

As regards the plea raised by the Learned Counsel for the accused Sazid that, "The prosecutrix herself told to the medical officers/Doctor her age as 17 years in her medical therefore her age is not less than 17 years", is concerned, it is evident from the record that during the incisive and lengthy crossexamination of PW1 - prosecutrix, the said accused did not voice his concern or raised any apprehension on the 52 of 166 53 FIR No. 121/09 PS - Sultan Puri said aspect regarding which the plea has been raised.

During her examinationinchief recorded on 16/11/2009, PW1 - prosecutrix has specifically deposed that : "My date of birth of (is) 10/07/93."

During her crossexamination conducted on behalf of accused Sazid, recorded on 15/02/2010, PW1 - prosecutrix has specifically deposed that : "My death (date) of birth is 10/07/1993. It is wrong to suggest that I was born in the year of 1991. It is wrong to suggest that my actual date of birth is not 10/07/1993."

In view of as to what has been discussed hereinabove, under the heading "Age of the Prosecutrix" at the cost of repetition, it stands established on record that PW1 - prosecutrix was aged 15 years 08 months and 22 days as on the date of alleged incident on 02/04/2009.

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 53 of 166 54 FIR No. 121/09 PS - Sultan Puri 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 PW1 - 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 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) 54 of 166 55 FIR No. 121/09 PS - Sultan Puri 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, 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, 55 of 166 56 FIR No. 121/09 PS - Sultan Puri 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."

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, 56 of 166 57 FIR No. 121/09 PS - Sultan Puri 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 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."

57 of 166 58 FIR No. 121/09 PS - Sultan Puri In the circumstances, there is no substance in the plea so raised by the Learned Counsel for the accused.

MEDICAL EVIDENCE OF THE PROSECUTRIX

15. PW2 - Dr. Neeraj Kumar, Senior, Medicine, SGM Hospital, New Delhi who medically examined the prosecutrix and proved his endorsement at point 'A' on the MLC Ex. PW2/A signed by him at point 'A'. He also proved the alleged history, general condition recorded by JR

- Dr. Mandeep Kaur bearing the signature of Dr. Mandeep Kaur at point 'A' on the MLC Ex. PW2/A. PW15 - Dr. Sanjay Jain, Casualty Incharge, SGM Hospital, Mangol Puri, Delhi who proved the preliminary medical examination of the prosecutrix on the MLC No. 3747 dated 05/04/2009 as was conducted by Dr. Neeraj vide Ex. PW2/A and by Dr. Mandeep Ex. PW15/B (on the MLC Ex. PW2/A).

PW16 - Dr. Ritu Singhal, Medical Officer, SGM Hospital, 58 of 166 59 FIR No. 121/09 PS - Sultan Puri Mangol Puri, Delhi who proved the gynaecological examination of prosecutrix as was conducted by Dr. Sangeeta from point 'X' to 'X' Ex. PW16/A signed by Dr. Sangeeta at point 'B' (on the MLC Ex. PW2/A).

PW20 - Dr. Manoj Dhingra, MOIC, Sanjay Gandhi Memorial Hospital, Delhi who (also examined in the Court on 24/09/2012 as PW19) proved the endorsement of PW2 - Dr. Neeraj Kumar (also examined in the Court as PW2) at point 'A' on MLC Ex. PW2/A regarding the medical examination of the prosecutrix and also proved the alleged history, general condition of the patient/prosecutrix by Dr. Mandeep Kaur who locally examined the patient/prosecutrix (vide Ex. PW15/B) on the MLC Ex. PW2/A which bears signature of Dr. Mandeep Kaur at point 'A'.

Despite grant of opportunity, PW2 - Dr. Neeraj Kumar, PW15 - Dr. Sanjay Jain, PW16 - Dr. Ritu Singhal and PW20 - Dr. Manoj Dhingra were not crossexamined on behalf of the accused.

In view of above and in the circumstances, the medical 59 of 166 60 FIR No. 121/09 PS - Sultan Puri examination vide MLC Ex. PW2/A, Ex. PW15/B on the MLC Ex. PW2/A and the gynaecological examination from point 'X' to 'X' Ex. PW16/A on the MLC Ex. PW2/A of PW1 - prosecutrix stands proved on the record.

VIRILITY OF THE ACCUSED

16. PW2 - Dr. Neeraj Kumar, Senior, Medicine, SGM Hospital, New Delhi has deposed that on 05/04/2009, at about 3:15 p.m. he examined patient/accused Sazid referred by CMO alongwith MLC Ex. PW2/B and proved his endorsement at encircled portion 'A' on the MLC of Sazid Ex. PW2/B signed by him at point 'X'.

PW15 - Dr. Sanjay Jain, Casualty Incharge, SGM Hospital, Mangol Puri, Delhi who proved the preliminarily medical examination of accused Sazid on the MLC No. 3748 dated 05/04/2009 as was conducted by Dr. Neeraj (also examined in the Court as PW2) on the encircled portion 'A' as Ex. PW15/A (on the MLC Ex. PW2/B).

PW19 - Dr. Manoj Dhingra, MOIC, Sanjay Gandhi Memorial Hospital, Delhi who (also examined in the Court on 10/10/2012 as PW20) has deposed that after seeing the MLC No. 3748 60 of 166 61 FIR No. 121/09 PS - Sultan Puri of Sazid Ex. PW15/A which is in the handwriting of Dr. Deepak and after going through the same and after examination of the patient Sazid, in his opinion, there is nothing to suggest that the patient is incapable of performing sexual intercourse.

PW20 - Dr. Manoj Dhingra, MOIC, Sanjay Gandhi Memorial Hospital, Delhi who (also examined in the Court on 24/09/2012 as PW19) proved the endorsement at encircled portion 'A' of Dr. Neeraj Kumar (also examined in the Court as PW2), on MLC of accused Sazid Ex. PW2/B which bears signature of Dr. Neeraj at point 'X'.

Despite grant of opportunity, PW2 - Dr. Neeraj Kumar, PW15 - Dr. Sanjay Jain and PW19 (also as PW20) - Dr. Manoj Dhingra were not crossexamined on behalf of the accused.

In view of above and in the circumstances, it stands proved on the record that accused Sazid was capable of performing sexual intercourse.

BIOLOGICAL AND SEROLOGICAL EVIDENCE 61 of 166 62 FIR No. 121/09 PS - Sultan Puri

17. As per the ordersheet dated 08/01/2013, since the Learned Counsel for accused Sazid and accused Mustakeem had "no objection" to the exhibition of FSL Result, the same was exhibited as Ex. PX.

As per biological report (FSL Report) Ex. PX the description of articles contained in parcel and result of analysis reads as under : DESCRIPTION OF ARTICLES CONTAINED IN PARCEL Parcel '1' : One sealed cloth parcel sealed with the seal of "SGMH GOVT OF NCT DEHI" containing exhibit '1' kept in a test tube.

Exhibit '1' : Cotton wool swab having pale yellowish stains on a wooden stick described as 'Vaginal swab of prosecutrix (name withheld)'.

Parcel '2' : One sealed cloth parcel sealed with the seal of "SGMH GOVT OF NCT DEHI" containing exhibit '2'.

Exhibit '2'          :
                    One underwear having few whitish stains 
                    described as 'undergarments of prosecutrix 
                    (name withheld)'.
Parcel '3'     :    One   sealed   cloth   parcel   sealed   with   the

seal of "SGMH GOVT OF NCT DEHI" containing exhibit '3' kept in a test tube.

62 of 166 63 FIR No. 121/09 PS - Sultan Puri Exhibit '3' : Dark brown liquid described as 'blood sample of accused Sazid'.

Parcel '4' : One sealed cloth parcel sealed with the seal of "SGMH GOVT OF NCT DEHI" containing exhibit '4'. Exhibit '4' : One underwear described as 'undergarments of accused Sajid'.

RESULT OF ANALYSIS

1. Human semen was detected on exhibits '1', '2' and '4'.

2. Blood was detected on exhibit '3'.

3. Report of serological analysis in original is attached herewith. NOTE : Remnants of the exhibits have been sealed with the seal of 'SB FSL DELHI'.

The serological report (FSL Report) Ex. PX reads as under : Exhibits Species of origin ABO Grouping/Remarks Semen stains: '1' Cotton wool swab No reaction '2' Underwear Inconclusive result '4' Underwear No reaction Blood stains : '3' Blood sample Sample was putrefied hence no opinion 63 of 166 64 FIR No. 121/09 PS - Sultan Puri As per the biological report Ex. PX with regard to the description of the articles contained in the parcels, it is noticed that, Parcel Nos. 1 & 2 belong to the prosecutrix which were seized vide seizure memo Ex. PW7/A dated 05/04/2009 and Parcel Nos. 3 & 4 belong to accused Sazid which were seized vide seizure memos Ex. PW10/B dated 05/04/2009.

On careful perusal and analysis of the biological and serological evidence on record, it clearly shows that blood was detected on exhibits '3' (blood sample of accused Sazid). Human semen was detected on exhibit '1' (Vaginal swab of prosecutrix)', exhibit '2' (undergarments of prosecutrix) and exhibit '4' (undergarments of accused Sazid). As per the serological report Ex. PX, sample was putrefied hence no opinion could be given on the exhibits '3' (blood sample of accused Sazid).

On a conjoint reading of the medical examination vide MLC Ex. PW2/A, Ex. PW15/B on the MLC Ex. PW2/A, the gynaecological 64 of 166 65 FIR No. 121/09 PS - Sultan Puri examination from point 'X' to 'X' Ex. PW16/A on the MLC Ex. PW2/A of the prosecutrix together with the medical examination of accused Sazid Ex. PW15/A on the MLC Ex. PW2/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. PX, prosecution has discharged its initial burden of proving the presence of Human semen on exhibit '1' Vaginal swab (of the prosecutrix seized vide seizure memo Ex. PW7/A)', exhibit '2' undergarments (of the prosecutrix seized vide seizure memo Ex. PW7/A) and exhibit '4' undergarments (of accused Sazid seized vide seizure memo Ex. 10/B). Accused Sazid was under an obligation to explain how and under what circumstances, the Human semen came to be present on the said exhibits '1', '2' and '4' as detailed hereinabove. The absence of 65 of 166 66 FIR No. 121/09 PS - Sultan Puri such an explanation both in the section 313 Cr.P.C. statement of the accused Sazid and his omission to lead any evidence in this regard and his complete denial becomes an additional link in the prosecution case.

FORENSIC EVIDENCE (CHEMICAL)

18. As per the FSL Report Ex. PW17/A the description of articles contained in parcel and result of analysis reads as under : DESCRIPTION OF ARTICLES CONTAINED IN PARCEL Parcel '5' : One cloth parcel sealed with the seal of "S.G.M.H. GOVT OF NCT, DEHI", marked as Sazid CR22593, MLC3748. It was found to contain exhibit '5', kept in a glass vial. Exhibit '5' : Light yellow coloured liquid app. 0.5 ml. Parcel '6' : One cloth parcel sealed with the seal of "S.G.M.H. GOVT OF NCT, DEHI", marked as Sazid 22M E22593, MLC3748. It was found to contain exhibits '6', kept in a vaccutainer. Exhibit '6' : Brown coloured liquid app. 0.5 ml. Parcel '7' : One cloth parcel sealed with the seal of 66 of 166 67 FIR No. 121/09 PS - Sultan Puri "S.G.M.H. GOVT OF NCT, DEHI", marked as prosecutrix (name withheld) E20641, MLC3747. It was found to contain exhibit '7', kept in a glass vial.

Exhibit '7' : Light yellow coloured liquid app. 1.0 ml. Parcel '8' : One cloth parcel sealed with the seal of "S.G.M.H. GOVT OF NCT, DEHI", marked as prosecutrix (name withheld) E20641, MLC3747 blood sample. It was found to contain exhibit '8', kept in a vaccutainer.

Exhibit '8' : Brown coloured liquid app. 1.0 ml. Parcel '9' : One plastic bottle sealed with the seal of "RS" marked as FIR No. 121/09, 363 IPC. It was found to contain exhibits '9'. Exhibit '9' : Light yellow coloured liquid app. 10.0 ml.

RESULTS OF EXAMINATION On Chemical, TLC & GCMS examination, (i) Exhibit '9' was found to contain "Allethrin" (Pesticide).

(ii) Allethrin (Pesticide) could not be detected on exhibits '5', '6', '7' & '8'.

NOTE : Case Exhibits/Remnants of Exhibits sent to this laboratory for examination have been sealed with the seal of 'AY FSL DELHI'.

67 of 166 68 FIR No. 121/09 PS - Sultan Puri As per the FSL report Ex. PW17/A with regard to the description of the articles contained in the parcels, it is noticed that, Parcel Nos. 5 & 6 belongs to the accused Sazid which were seized vide seizure memos Ex. PW6/A dated 05/04/2009, Parcel Nos. 7 & 8 belongs to the prosecutrix which was seized vide seizure memo Ex. PW10/C dated 05/04/2009 and Parcel No. 9 was seized vide seizure memo Ex. PW10/D dated 05/04/2009.

On careful perusal and analysis of the Forensic Chemical Evidence on record, it clearly shows that exhibit 9 was found to contain "Allethrin" (Pesticide).

The perusal of the seizure memo Ex. PW10/D indicates that it relates to one All Out small bottle which was handed over by SI Mukesh Kumar, PS - Sultan Puri in the Emergency Ward OF SGM Hospital to PW10 - ASI Rajender Singh stating that the said bottle was handed over to him (SI Mukesh Kumar) by Sazid.

PW10 - ASI Rajender Singh, in his examinationinchief 68 of 166 69 FIR No. 121/09 PS - Sultan Puri has specifically deposed which is reproduced and reads as under : "SI Mukesh handed over one all out small bottle to me in the Emergency Ward of SGM Hospital and he told me that the same was handed over to him by the accused Sazid (objected to) and the same were taken into possession after sealing the same with the seal of 'RS' vide memo Ex. PW10/D which bears my signatures at point 'A', Constable Ravinder at point 'B', SI Mukesh at point 'C'.

There is nothing in the crossexamination of PW10 - ASI Rajender Singh regarding the seizure memo Ex. PW10/D, so as to impeach his creditworthiness.

On a conjoint reading of the Forensic Chemical Evidence Ex. PW17/A, together with the evidence of PW10 - ASI Rajender Singh, as reproduced hereinabove, it clearly indicates that exhibit '9' (Light yellow coloured liquid app. 10.0 ml.) which was found to contain "Allethrin" (Pesticide) was in possession of accused Sazid.

Prosecution has discharged its initial burden of proving the presence of exhibit '9' (Light yellow coloured liquid app. 10.0 ml.) which was found to contain "Allethrin" (Pesticide) in the 69 of 166 70 FIR No. 121/09 PS - Sultan Puri possession of accused Sazid. Accused Sazid was under an obligation to explain how and under what circumstances, he came in possession of exhibit '9' (Light yellow coloured liquid app. 10.0 ml.) which was found to contain "Allethrin" (Pesticide). The absence of such an explanation both in the section 313 Cr.P.C. statement of the accused Sazid and his omission to lead any evidence in this regard and his complete denial becomes an additional link in the prosecution case.

19. Now let the testimonies of PW1 - Prosecutrix and PW2 - Sh. Ajit Kumar, her father be perused and analysed.

PW1 is the prosecutrix, who in her examinationinchief has deposed which is reproduced and reads as under : "On 02/04/2009 I had gone to the book store for purchasing book of 10 standard as I was studying in 10th standard in National Open th Schooling. At about 9:30 p.m. after purchasing book from the store I was heading towards my house, I saw that accused Sazid was standing on the road near the book store. When I was passing from his side he stopped the bike in front of me. He asked me to sit down on his bike as he will drop me at my house but I refused on which he forcibly pulled my hand and made me to sit on the bike. At the same time one another 70 of 166 71 FIR No. 121/09 PS - Sultan Puri boy Mustakeem came from the back side and put a handkerchief on my mouth and sat down on my back. I become unconscious. On the next day I gained consciousness and found myself at Bagpat. I inquired from the sister of Mustakeem as to where I am to which she replied that it is Bagpat. Accused Sazid attended one telephone on his mobile and he came to know that a complaint has been filed by my father. I heard this fact when Sazid and Mustakeem were discussing with each other. After this, I was forcibly taken to Meerut Railway Station by Sazid and Mustakeem. Accused persons purchased two tickets from Meerut to Gwalior. I asked both the accused persons to leave me as my father has lodged complaint and you will be in trouble on which accused Sazid gave me slap and made me sit in the train. At about 7:30 8:00 p.m. we i.e. me and Sazid reached at Gwalior. I told to Sazid to leave me alone and sent me to my parents otherwise, I will make noise. Accused Sazid purchased two tickets from Gwalior to New Delhi and we boarded the train heading towards Delhi. In the train we met two three friends of Sazid who discussed something with the accused. When we reached at Delhi Railway Station we returned back to UP by bus. We went to the house of friend of the accused at UP there the parents of friend of accused Sazid refused to allow us enter in their house. The witness pointed out towards Mustakeem and Sazid present in the Court today.

During her further examinationinchief recorded on 16/11/2009, PW1 - prosecutrix has deposed that : "On 04/04/2009, we started from UP and reached on the intervening night of 04/04/200905/04/2009, we came back to Delhi at about 1:00 a.m. (night). We went to the house of brother of accused 71 of 166 72 FIR No. 121/09 PS - Sultan Puri Sajid, there Sajid served meals to me, after eating the same, I felt unconscious. The accused Sajid had committed rape upon (her) forcibly. When, in the morning on 05/04/2009 I got, I found myself naked, having no clothes on my body. I asked Sajid as to why he had committed this act on me to which he replied that it was his wish. On 05/04/2009, accused Sajid told me that he is going to leave me at my house. Brother of accused told Sajid that I should be left at the PS instead of at my house. When we were near the PS - Sultan Puri, the accused forcibly made me consume/drink poison and put the same forcibly in my mouth in order to kill me. Even I refused to consume the same. When I reached the PS, I told the Lady Police official that I have been forcibly made to consume/drink poison. I was immediately taken to SGM Hospital, where I was medically treated for 45 days. Thereafter on 09/04/2009, I was produced before the Court and next date was given on 21/04/2009, on which date my statement was recorded by the Judge Sahab. The same is Ex. PW1/A1 to A3 signed by me at point 'A'. I signed 5 pages. I was medically examined at SGM Hospital, the MLC is mark 'A' and my thumb impression is at point 'B'. My undergarments were taken by the doctor and other medical treatment was given. My date of birth is 10/07/1993. I have studied in10th class in Govt. Sarvodaya Kanya Vidhalaya, Nangloi. I can identify the brother of accused Sajid and sister of Mustakeem, if shown to me. I can also identify my clothes, if shown to me. Both the accused are present in the Court today. The accused be punished in accordance with law and they should be taught a lesson so that, they could not spoil the life of any other girl in future. I know the accused Sajid as he was introduced to me by one of my neighbour Phool Chand. He used to tease me and I had told this to my mother also, to which she asked me to ignore the same. I know accused Mustakeem, as he was involved in the present case and he 72 of 166 73 FIR No. 121/09 PS - Sultan Puri was a friend of Sajid."

During her further examinationinchief recorded on 15/02/2010, PW1 - prosecutrix has deposed that : "I can identify my under garments if same is shown to me. At this stage MHC(M) had produced sealed parcel with the seal of 'SB, FSL, Delhi' bearing the particular of the present case. The same is open and found containing one brown colour undergarment having two cut holes. Same is shown to the witness and the witness correctly identified the same. The same is Ex. P1."

From the aforesaid narration of PW1 - prosecutrix, it is clear that on 02/04/2009 she had gone to the book store for purchasing book of 10th standard as she was studying in 10th standard in National Open Schooling. At about 9:30 p.m. after purchasing book from the store she was heading towards her house, she saw that accused Sazid was standing on the road near the book store. When she was passing from his side he stopped the bike in front of her. He asked her to sit down on his bike as he will drop her at her house but she refused on which he forcibly pulled her hand and made her to sit on the bike. At the same time one another boy Mustakeem came from the back side and put a 73 of 166 74 FIR No. 121/09 PS - Sultan Puri handkerchief on her mouth and sat down on her back. She became unconscious. On the next day she gained consciousness and found herself at Bagpat. She inquired from the sister of Mustakeem as to where she is to which she replied that it is Bagpat. Accused Sazid attended one telephone on his mobile and he came to know that a complaint has been filed by her father. She heard this fact when Sazid and Mustakeem were discussing with each other. After this, she was forcibly taken to Meerut Railway Station by Sazid and Mustakeem. Accused persons purchased two tickets from Meerut to Gwalior. She asked both the accused persons to leave her as her father has lodged complaint and they (accused) will be in trouble on which accused Sazid gave her slap and made her sit in the train. At about 7:30 8:00 p.m. they i.e. she and Sazid reached at Gwalior. She told to Sazid to leave her alone and sent her to her parents otherwise, she will make noise. Accused Sazid purchased two tickets from Gwalior to New Delhi and they boarded the train heading towards Delhi. In the train they met two three friends of Sazid who discussed something with the accused. When they reached at Delhi Railway Station they returned back to UP by bus. They went to the house of friend of the accused at UP there the parents 74 of 166 75 FIR No. 121/09 PS - Sultan Puri of friend of accused Sazid refused to allow them enter in their house. She correctly identified both the accused Mustakeem and Sazid present in the Court. On 04/04/2009, they started from UP and reached on the intervening night of 04/04/200905/04/2009, they came back to Delhi at about 1:00 a.m. (night). They went to the house of brother of accused Sazid, there Sazid served meals to her, after eating the same, she felt unconscious. The accused Sazid had committed rape upon her forcibly. When, in the morning on 05/04/2009 she got, she found herself naked, having no clothes on her body. She asked Sazid as to why he had committed this act on her to which he replied that it was his wish. On 05/04/2009, accused Sazid told her that he is going to leave her at her house. Brother of accused told Sazid that she should be left at the PS instead of at her house. When they were near the PS - Sultan Puri, the accused forcibly made her consume/drink poison and put the same forcibly in her mouth in order to kill her. Even she refused to consume the same. When she reached the PS, she told the Lady Police official that she had been forcibly made to consume/drink poison. She was immediately taken to SGM Hospital, where she was medically treated for 45 days. Thereafter on 09/04/2009, she was produced before the Court 75 of 166 76 FIR No. 121/09 PS - Sultan Puri and next date was given on 21/04/2009, on which date her statement was recorded by the Judge Sahab. The same is Ex. PW1/A1 to A3 signed by her at point 'A'. She signed 5 pages. She was medically examined at SGM Hospital, the MLC is mark 'A' and her thumb impression is at point 'B'. Her undergarments were taken by the doctor and other medical treatment was given. Her date of birth is 10/07/1993. She had studied in 10th class in Govt. Sarvodaya Kanya Vidhalaya, Nangloi. She correctly identified both the accused in the Court and deposed that the accused be punished in accordance with law and they should be taught a lesson so that, they could not spoil the life of any other girl in future. She knew the accused Sazid as he was introduced to her by one of her neighbour Phool Chand. He used to tease her and she had told this to her mother also, to which she asked her (PW1) to ignore the same. She knew accused Mustakeem, as he was involved in the present case and he was a friend of Sazid. She also identified one brown colour undergarment having two cut holes as Ex. P1.

PW1 - Prosecutrix during her crossexamination has negated the suggestions that she was born in the year of 1991 or that her 76 of 166 77 FIR No. 121/09 PS - Sultan Puri actual date of birth is not 10/07/1993 or that she was expelled the School as one mobile was recovered from her or that pursuant to recovery of mobile phone from her she was asked to bring her mother and she had taken a fake mother and the identity of the fake mother was revealed due to the aforesaid reason she was expelled from the School or that she was also taken to the PS - Nangloi regarding that recovered mobile phone or that she was not taken by accused Sazid and Mustakeem by motorcycle at the house of sister of the accused Mustakeem on 02/04/2003 or that she had given her statement to ASI Rajinder Singh voluntarily or that her attendance in the School were adequate or that the telephone no. 25188791, 32598120 are the telephone numbers of her residence or that the telephone no. 9211643508 and 9990544697 belongs to accused Sazid or that she used to call from the telephone no. 25188791, 32598120 to the accused Sazid on telephone no. 9211643508 and 9990544697 or that she was in love with accused Sazid since January, 2007 or that accused Sazid used to ignore her initially or that it is she who was after the accused Sazid or that she had threatened the accused Sazid of dire consequences if he visit the residence of Farrah or that she had demanded a mobile phone from accused Sazid or that she alongwith Sazid had gone to PS -

77 of 166 78 FIR No. 121/09 PS - Sultan Puri Sultan Puri together or that she had told lady Constable Raj Kumar to effect that she eloped/run away with the accused Sazid and now they had come to the PS after taking poison or that she left the house on 02/04/2009 without informing to anyone of her family or that on 02/04/2009 accused Sazid did not met her or that accused Mustakeem was not present at Meerut Railway Station when she was taken by accused Sazid to there or that accused Sazid never took her to Meerut Railway Station by bike or that she never went to Baagpat and Meerut or that accused Sazid had never taken her to Gwalior or that she had written letter Ex. PW1/DB of her own sweet will or that she love Sazid and she wanted to marry Sazid but her parents were against her relationship with Sazid or that she is deposing before Court against Sazid under pressure of her parents or that she disappeared from her house of her own on 12/04/2009 (be read as 02/04/2009) and nobody was aware about her disappearance from home including her parents and Sazid or that accused Sazid did not met (meet) her anywhere between 12/04/2009 to 15/04/2009 (be read as 02/04/2009 to 05/04/2009) till 12:00 noon or that accused Sazid had met her for the first time after her disappearance from her home at a distance of 200 meters away from PS - Sultan Puri at 78 of 166 79 FIR No. 121/09 PS - Sultan Puri about 12:30 noon on 15/04/2009 (be read as 05/04/2009) or that when accused Sazid met her near the PS - Sultan Puri, then she presented letter Ex. PW1/DB to him and she forced him to write in the same manner as she had written on it or that she had stated to Sazid that she had left her house for him and he should also leave his home and life for her or that she forced accused Sazid to write portion 'X' to 'X' of letter Ex. PW1/DB with the threat that if Sazid would not wrote this portion, she will consume unknown poisioning (poisonous) substance which was in her hand to finish her life or that portion 'X' to 'X' of letter Ex. PW1/DB was written by accused under her aforesaid threat or that accused Sazid snatched unknown poisoning substance after writing portion 'X' to 'X' of Ex. PW1/DB and threw the same on road, as a result of which bottle/shishi broken or that she had told her age 17 years to the Doctor while giving her particulars to him as mentioned at point 'DX' on her MLC Ex. PW2/A or that on the day of her medical examination, she was 17 years old or that she is knowingly concealing her correct age before Court or that she was not taken by accused Sazid at his brother's house or that accused Sazid did not provide any meal to her at any point of time or that accused Sazid never raped her or that accused Sazid did 79 of 166 80 FIR No. 121/09 PS - Sultan Puri not take her to PS - Sultan Puri from the house of his brother at any point of time or that she did not tell the aforesaid fact of pointing the knife on back to anywhere as today (on the day of recording evidence) she is narrating wrong story to falsely implicate the accused Sazid or that accused Sazid did not administered the poisoning substance/all out at ant point of time to her or that she is deposing falsely or that the letter mark 'DP' was written by her to the accused on her free will in the month of December, 2008 or that she made this false case against the accused only because accused Sazid refused to accompany on 05/04/2009 at about 12:00 noon when she left her house or that between 02/04/2009 to 05/04/2009, she remained with her boyfriend Sarvesh or that accused Sazid did not administered poisoning substance/all out to her at any point of time or that she is deposing falsely or that accused Sazid did not use force to take her to Baghpat, UP on 02/04/2009 or that accused Mustakeem was not sitting behind her on bike during journey of Shani Bazar Road to Baghpat, UP or that on intervening night of 0203/04/2009, accused Mustakeem had gone to Gurgaon for his job alongwith his Jeeja (Sharafat) and other labours by truck from Baghpat, UP or that she falsely named accused Mustakeem in present case as he is 80 of 166 81 FIR No. 121/09 PS - Sultan Puri friend of accused Sazid or that these facts were not stated by her before Police as well as Learned MM as she had not made any complaint to this effect to any one or that she was not taken to Railway Station, Meerut by accused Sazid and Mustakeem or that she was having a heart mark on any part of her body on 02/04/2009 or that the aforesaid injury (injury on both palms) had been caused to her as she had to meet her friend (other than accused persons) by rope/rassi from the roof of her house or that she had come to the Court from her house for giving statement u/s 164 Cr.P.C. Before the Court or that she had given statement u/s 164 Cr.P.C. before the Magistrate on the insistence of her parents or that the both accused persons had not kidnapped her or that i.e. Why she had not made hue and cry before public or before Police to the effect that she had been brought by accused persons forcibly or that the accused Mustakeem had been falsely implicated being the friend of accused Sazid in connivance with her father or that she did not become unconscious while sitting on the bike of accused Sazid and during journey between Shani Bazar Road to Baghpat, UP or that the same cloth (which she was wearing on the date of evidence) had been gifted by her boyfriend other than accused persons or that with whom she had gone somewhere else on 02/04/2009 81 of 166 82 FIR No. 121/09 PS - Sultan Puri or that she remained with him till 05/04/2009 or that she wanted assistance of accused Mustakeem to go with her friend other than Sazid as to why she falsely implicated in present case to accused Mustakeem or that she is not deposing falsely at her own but she is a tutored one or that Ex. P1 is not her undergarment or that she had got down by rope from the roof of her house and thereafter, went to the house of her friend Sarvesh and from there, she had made a call to the accused Sazid from mobile of Rajesh or that between 02/04/2009 to 05/04/2009. she had remained at the house of one Sarvesh and during this period she had made physical relations with Sarvesh or that the accused Sazid had not got written any letter from her forcibly or that she had went out from her house without informing anyone as she had become aware that the accused Sazid is going to be married with Farrah and she wanted this marriage stopped or that she had falsely implicated the accused Sazid as he refused to marry with her and he was adamant to marry Farrah or that she is deposing falsely.

Inspite of incisive crossexamination of PW1 - prosecutrix nothing material has been brought out on the record so as to impeach her 82 of 166 83 FIR No. 121/09 PS - Sultan Puri creditworthiness. In the witness box she has withstood the test of cross examination and her testimony is consistent throughout. The testimony of PW1 - Prosecutrix on careful perusal and analysis is found to be clear, natural, cogent, convincing, trustworthy and inspiring confidence. The version of this witness on the core spectrum of the crime has remained intact. There is nothing in her statement to suggest that she had any animus against the accused to falsely implicate them in the case.

The testimony of PW1 - Prosecutrix is also found to be corroborated by the medical evidence as well as the biological and serological evidence as discussed hereinbefore.

The testimony of PW1 - Prosecutrix is also found to be in consonance with her statement recorded u/s 164 Cr.P.C. Ex. PW1/A1 to A3 (also Ex. PW14/A).

The testimony of PW1 - Prosecutrix is also found to be corroborated by PW2 - Ajit Kumar, her father, to whom prosecutrix disclosed the facts relating to the crime shortly after the incident, at 83 of 166 84 FIR No. 121/09 PS - Sultan Puri the first available opportunity, being relevant u/s 6 & 8 of the Indian Evidence Act, 1872.

PW2 - Ajit Kumar in his examinationinchief has deposed that : "Prosecutrix (name withheld) is my daughter. On 02/04/2009 my daughter/prosecutrix (name withheld) was student of 10th class from Open School. On that day i.e. On 02/04/2009 my daughter/prosecutrix (name withheld) and my other family members were present at the house. I was present outside my house at a distance of about 50 yards. At about 10:00/10:15 p.m. I came back inside my house. At the time of taking dinner at my house I found my daughter/prosecutrix (name withheld) missing from my house. I searched for my daughter here and there but I could not find any clue on that night about her. I made inquiry from my wife also as where prosecutrix (name withheld) had gone from house. My wife told me that my daughter had gone to market to purchase some books and other stationery articles and she did not turn up to my house. I got suspicion on accused Sajid present in the Court today (correctly identified by witness) as he used to sit on a meat shop situated near my house and prior to that day my daughter/prosecutrix (name withheld) had complained against accused Sajid that he had teased her. Then I informed the Police at no. 100. PCR van reached at the spot and local Police was also reached at the spot. My statement was recorded by ASI Rajender Singh at my house in which I named accused Sajid. My said statement is Ex. PW2/A which was signed by me between 12 mid night 84 of 166 85 FIR No. 121/09 PS - Sultan Puri and 1:00 a.m. I came to know that my daughter/prosecutrix (name withheld) is admitted in SGM Hospital, Mangol Puri. Then, I reached there and found my daughter admitted there. Then she told me about the contents of the incident. I handed over photocopy of birth certificate of my daughter/prosecutrix (name withheld) issued by Registrar Birth, Govt. of Delhi and the same is mark 'A'. The said copy was taken into possession by IO vide memo Ex. PW2/B which bears my signatures at point 'A'. I handed over a photocopy of School Leaving Certificate of my daughter/prosecutrix (name withheld) to Police which was taken into possession vide memo Ex. PW2/C which bears my signatures at point 'A'. The photocopy of School Leaving Certificate is mark 'B'. Accused Mustakeem (correctly identified by witness) was arrested by the Police on 04/04/2009 in my presence at about 7:25 p.m. from House No. 215, Aman Vihar, Delhi. IO prepared arrest memo Ex. PW2/D which bears my signatures at point 'A'. Personal search of accused Mustkeen was taken vide memo Ex. PW2/E which bears my signatures at point 'A'. Accused Mustakeem was interrogated and he made disclosure statement to Police which is Ex. PW2/E (Also as Ex. PW2/E1 as in the evidence of PW10 - ASI Rajinder Singh) and bears my signatures at point 'A' and accused Mustakeem signed the same at point 'X'."

From the aforesaid narration of PW2 - Ajit Kumar it is clear that the prosecutrix is his daughter. On 02/04/2009 his daughter was student of 10th class from Open School. On that day i.e. On 02/04/2009 his daughter and his other family members were present at the house. He was present outside his house at a distance of about 50 yards. At about 85 of 166 86 FIR No. 121/09 PS - Sultan Puri 10:00/10:15 p.m. he came back inside his house. At the time of taking dinner at his house he found his daughter missing from his house. He searched for his daughter here and there but he could not find any clue on that night about her. He made inquiry from his wife also as where had gone from house. His wife told him that his daughter had gone to market to purchase some books and other stationery articles and she did not turn up to his house. He got suspicion (Suspicious) on accused Sazid whom he correctly identified in the Court as he used to sit on a meat shop situated near his house and prior to that day his daughter had complained against accused Sazid that he had teased her. Then he (PW2) informed the Police at no. 100. PCR van reached at the spot and local Police also reached at the spot. His statement was recorded by ASI Rajender Singh at his house in which he named accused Sazid. His said statement is Ex. PW2/A which was signed by him. Between 12 mid night and 1:00 a.m., he came to know that his daughter is admitted in SGM Hospital, Mangol Puri. Then, he reached there and found his daughter admitted there. Then she told him about the contents of the incident. He handed over photocopy of birth certificate of his daughter issued by Registrar Birth, Govt. of Delhi and the same is mark 'A'. The 86 of 166 87 FIR No. 121/09 PS - Sultan Puri said copy was taken into possession by IO vide memo Ex. PW2/B which bears his signatures at point 'A'. He handed over a photocopy of School Leaving Certificate of his daughter to Police which was taken into possession vide memo Ex. PW2/C which bears his signatures at point 'A'. The photocopy of School Leaving Certificate is mark 'B'. Accused Mustakeem (correctly identified by witness) was arrested by the Police on 04/04/2009 in his presence at about 7:25 p.m. from House No. 215, Aman Vihar, Delhi. IO prepared arrest memo Ex. PW2/D which bears his signatures at point 'A'. Personal search of accused Mustakeem was taken vide memo Ex. PW2/E which bears his signatures at point 'A'. Accused Mustakeem was interrogated and he made disclosure statement to Police which is Ex. PW2/E (Also as Ex. PW2/E1 as in the evidence of PW10 - ASI Rajinder Singh) and bears his signatures at point 'A' and accused Mustakeem signed the same at point 'X'.

During his crossexamination PW2 - Ajit Kumar has negated the suggestions that he had concealed the fact deliberately regarding the admission of School or that the birth certificate mentioned above is a forged one or that accused Mustakeem was falsely implicated 87 of 166 88 FIR No. 121/09 PS - Sultan Puri in this case in connivance with the Police or that he is deposing falsely or that the prosecutrix had stayed with one Sarvesh from 02/04/2009 to 05/04/2009 or that on 05/04/2009 Sazid had met with prosecutrix (name withheld) at 12:30 a.m. (afternoon) or that the prosecutrix was having love affair with accused Sazid prior to the incident but Sazid got engaged with Farrah or that due to this fact his daughter has falsely implicated accused Sazid in connivance with Sarvesh in the present case.

Inspite of incisive crossexamination of PW2 - Ajit 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 and by applying the discerning scrutiny standard [Ref. Raju @ Balachandran & Ors. Vs. State of Tamil Nadu 2012 XII (S.C.)1] the testimony of PW2 - Ajit Singh 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 accused Sazid and Mustakeem to falsely implicate them in the case.

88 of 166 89 FIR No. 121/09 PS - Sultan Puri

20. While analysing the testimony of PW1 Prosecutrix and PW2 - Ajit Singh, her father as discussed hereinabove inspite of incisive crossexamination of PW1 Prosecutrix and PW2 - Ajit Singh nothing has come out in their statements which may throw even a slightest doubt on the prosecution version of the incident. Though the suggestions by the defence to PW1 Prosecutrix that she was born in the year of 1991 or that her actual date of birth is not 10/07/1993 or that she was expelled the School as one mobile was recovered from her or that pursuant to recovery of mobile phone from her she was asked to bring her mother and she had taken a fake mother and the identity of the fake mother was revealed due to the aforesaid reason she was expelled from the School or that she was also taken to the PS - Nangloi regarding that recovered mobile phone or that she was not taken by accused Sazid and Mustakeem by motorcycle at the house of sister of the accused Mustakeem on 02/04/2003 or that she had given her statement to ASI Rajinder Singh voluntarily or that her attendance in the School were adequate or that the telephone no. 25188791, 32598120 are the telephone numbers of her residence or that the telephone no. 9211643508 and 9990544697 belongs to accused Sazid or that she used to call from the 89 of 166 90 FIR No. 121/09 PS - Sultan Puri telephone no. 25188791, 32598120 to the accused Sazid on telephone no. 9211643508 and 9990544697 or that she was in love with accused Sazid since January, 2007 or that accused Sazid used to ignore her initially or that it is she who was after the accused Sazid or that she had threatened the accused Sazid of dire consequences if he visit the residence of Farrah or that she had demanded a mobile phone from accused Sazid or that she alongwith Sazid had gone to PS - Sultan Puri together or that she had told lady Constable Raj Kumar to effect that she eloped/run away with the accused Sazid and now they had come to the PS after taking poison or that she left the house on 02/04/2009 without informing to anyone of her family or that on 02/04/2009 accused Sazid did not met her or that accused Mustakeem was not present at Meerut Railway Station when she was taken by accused Sazid to there or that accused Sazid never took her to Meerut Railway Station by bike or that she never went to Baagpat and Meerut or that accused Sazid had never taken her to Gwalior or that she had written letter Ex. PW1/DB of her own sweet will or that she love Sazid and she wanted to marry Sazid but her parents were against her relationship with Sazid or that she is deposing before Court against Sazid under pressure of her parents or that she disappeared from her house of 90 of 166 91 FIR No. 121/09 PS - Sultan Puri her own on 12/04/2009 (be read as 02/04/2009) and nobody was aware about her disappearance from home including her parents and Sazid or that accused Sazid did not met (meet) her anywhere between 12/04/2009 to 15/04/2009 (be read as 02/04/2009 to 05/04/2009) till 12:00 noon or that accused Sazid had met her for the first time after her disappearance from her home at a distance of 200 meters away from PS - Sultan Puri at about 12:30 noon on 15/04/2009 (be read as 05/04/2009) or that when accused Sazid met her near the PS - Sultan Puri, then she presented letter Ex. PW1/DB to him and she forced him to write in the same manner as she had written on it or that she had stated to Sazid that she had left her house for him and he should also leave his home and life for her or that she forced accused Sazid to write portion 'X' to 'X' of letter Ex. PW1/DB with the threat that if Sazid would not wrote this portion, she will consume unknown poisioning substance which was in her hand to finish her life or that portion 'X' to 'X' of letter Ex. PW1/DB was written by accused under her aforesaid threat or that accused Sazid snatched unknown poisoning substance after writing portion 'X' to 'X' of Ex. PW1/DB and threw the same on road, as a result of which bottle/shishi broken or that she had told her age 17 years to the Doctor 91 of 166 92 FIR No. 121/09 PS - Sultan Puri while giving her particulars to him as mentioned at point 'DX' on her MLC Ex. PW2/A or that on the day of her medical examination, she was 17 years old or that she is knowingly concealing her correct age before Court or that she was not taken by accused Sazid at his brother's house or that accused Sazid did not provide any meal to her at any point of time or that accused Sazid never raped her or that accused Sazid did not take her to PS - Sultan Puri from the house of his brother at any point of time or that she did not tell the aforesaid fact of pointing the knife on back to anywhere as today (on the day of recording evidence) she is narrating wrong story to falsely implicate the accused Sazid or that accused Sazid did not administered the poisoning substance/all out at ant point of time to her or that she is deposing falsely or that the letter mark 'DP' was written by her to the accused on her free will in the month of December, 2008 or that she made this false case against the accused only because accused Sazid refused to accompany on 05/04/2009 at about 12:00 noon when she left her house or that between 02/04/2009 to 05/04/2009, she remained with her boyfriend Sarvesh or that accused Sazid did not administered poisoning substance/all out to her at any point of time or that she is deposing falsely or that accused Sazid did not use force to take 92 of 166 93 FIR No. 121/09 PS - Sultan Puri her to Baghpat, UP on 02/04/2009 or that accused Mustakeem was not sitting behind her on bike during journey of Shani Bazar Road to Baghpat, UP or that on intervening night of 0203/04/2009, accused Mustakeem had gone to Gurgaon for his job alongwith his Jeeja (Sharafat) and other labours by truck from Baghpat, UP or that she falsely named accused Mustakeem in present case as he is friend of accused Sazid or that these facts were not stated by her before Police as well as Learned MM as she had not made any complaint to this effect to any one or that she was not taken to Railway Station , Meerut by accused Sazid and Mustakeem or that she was having a heart mark on any part of her body on 02/04/2009 or that the aforesaid injury (injury on both palms) had been caused to her as she had to meet her friend (other than accused persons) by rope/rassi from the roof of her house or that she had come to the Court from her house for giving statement u/s 164 Cr.P.C. Before the Court or that she had given statement u/s 164 Cr.P.C. before the Magistrate on the insistence of her parents or that the both accused persons had not kidnapped her or that i.e. Why she had not made hue and cry before public or before Police to the effect that she had been brought by accused persons forcibly or that the accused Mustakeem had been 93 of 166 94 FIR No. 121/09 PS - Sultan Puri falsely implicated being the friend of accused Sazid in connivance with her father or that she did not become unconscious while sitting on the bike of accused Sazid and during journey between Shani Bazar Road to Baghpat, UP or that the same cloth (which she was wearing on the date of evidence) had been gifted by her boyfriend other than accused persons or that with whom she had gone somewhere else on 02/04/2009 or that she remained with him till 05/04/2009 or that she wanted assistance of accused Mustakeem to go with her friend other than Sazid as to why she falsely implicated in present case to accused Mustakeem or that she is not deposing falsely at her own but she is a tutored one or that Ex. P1 is not her undergarment or that she had got down by rope from the roof of her house and thereafter, went to the house of her friend Sarvesh and from there, she had made a call to the accused Sazid from mobile of Rajesh or that between 02/04/2009 to 05/04/2009. she had remained at the house of one Sarvesh and during this period she had made physical relations with Sarvesh or that the accused Sazid had not got written any letter from her forcibly or that she had went out from her house without informing anyone as she had become aware that the accused Sazid is going to be married with Farrah and she wanted this marriage stopped or 94 of 166 95 FIR No. 121/09 PS - Sultan Puri that she had falsely implicated the accused Sazid as he refused to marry with her and he was adamant to marry Farrah or that she is deposing falsely and the suggestions to PW2 - Ajit Singh that he had concealed the fact deliberately regarding the admission of School or that the birth certificate mentioned above is a forged one or that accused Mustakeem was falsely implicated in this case in connivance with the Police or that he is deposing falsely or that the prosecutrix had stayed with one Sarvesh from 02/04/2009 to 05/04/2009 or that on 05/04/2009 Sazid had met with prosecutrix (name withheld) at 12:30 a.m. (afternoon) or that the prosecutrix was having love affair with accused Sazid prior to the incident but Sazid got engaged with Farrah or that due to this fact his daughter has falsely implicated accused Sazid in connivance with Sarvesh in the present case, were put, which were negated by the said PWs but the same have not at all being made probable much established by any cogent evidence. Further there is not an iota of evidence or even a suggestion that the accused have been falsely implicated because of animosity.

However, a futile attempt has been made by the accused to 95 of 166 96 FIR No. 121/09 PS - Sultan Puri save their skins from the clutches of law by way of examination of defence witnesses namely DW1 - Constable Ved Pal, DW2 - Sharafat, DW3 - HC Sajjan Singh, DW4 - Smt. Gulshan and DW5 Neeraj. DW2

- Sharafat has been examined on behalf of accused Mustakeem and the remaining witnesses namely DW1 - Constable Ved Pal, DW3 - HC Sajjan Singh, DW4 - Smt. Gulshan and DW5 - Neeraj have been examined on behalf of accused Sazid.

DW1 - Constable Ved Pal in his examinationinchief had deposed that : "I am summoned witness and today I have brought the order of Addl. Dy. Commissioner of Police (GA) police control room, Delhi. As per order dated 02/08/2012 of Addl. Dy. Commissioner of Police (GA), old record of PCR/zones and line/PCR Unit were destroyed. Copy of said order is Ex. DW1/A and certification of destruction of record is Ex. DW1/B. Therefore summoned record is not available in the record room."

DW3 - HC Sajjan Singh in his examinationinchief had deposed that : "I am summoned witness and today I have brought the 96 of 166 97 FIR No. 121/09 PS - Sultan Puri summoned record i.e Rojnamcha register pertaining to DD no. 14 A and 22 A both dated 26/07/2008 and of PS Nangloi. Photocopy of said DD's are Ex. DW3/A and Ex. DW3/B (OSR)."

DW5 - Neeraj in his examinationinchief has deposed that : "I am a photographer by profession and doing job at Juneja Studio, MP Market, Shop No. 33, Pitampura, Delhi. I have seen photograph Ex. PW1/DA and the same was clicked by me in the Juneja Studio."

On careful perusal and analysis of the testimonies of DW1 - Constable Ved Pal, DW3 - HC Sajjan Singh and DW5 Neeraj, it is found that DW1 - Constable Ved Pal has produced the copy of the order of Addl. DCP/GA PCR, Delhi dated 02/08/2012 Ex. DW1/A and the certificate of destruction of the record Ex. DW1/B. DW3 - HC Sajjan Singh has proved the photocopies of DD No. 14A and 22A, both dated 26/07/2008, PS - Nangloi Ex. DW3A and Ex. DW3/B respectively. DW5 - Neeraj has deposed that he has seen photograph Ex. PW1/DA and the same was clicked by him in the Juneja Studio, where he does the job as a photographer. It is not made clear by the Learned Counsel for 97 of 166 98 FIR No. 121/09 PS - Sultan Puri accused Sazid as to what benefit he intends to reap from the testimonies of the said defence witnesses and as to how and in what manner it advances the defence of the accused Sazid and come to the rescue of the said accused.

DW4 - Smt. Gulshan in her examinationinchief had deposed that : "I know tailoring and does the work of tailoring at my home. My daughter namely Farrah got engaged with Sazid on 17/04/2008. After few days of engagement of Farrah, one girl came to my home and inquired about Farrah. On my inquiry she told me that she is prosecutrix (name withheld) and she is friend of Farrah. She asked me to call Farrah as she wants to meet Farrah. Thereafter I called Farrah and I went inside and started my work. After about five minutes I came outside and saw that prosecutrix (name withheld) is threatening my daughter Farrah to dissolve her engagement with Sazid because she (prosecutrix) loves Sazid. She (prosecutrix) also threatened to Farrah that "if you will not break your engagement with Sazid both of you will face dire consequences". Thereafter I rebuked her and she (prosecutrix) left our house. Thereafter I told about this incident to Sazid, he told me that prosecutrix (name withheld) was his friend but there is no friendship between them. On the assurance of Sazid I became tension free, therefore I did not take any action against prosecutrix (name withheld).

On 03/04/2009 Sazid came to my house and he stayed there for two days. On 05/04/2009 we came to know that a false case was 98 of 166 99 FIR No. 121/09 PS - Sultan Puri registered against Sazid and I advised Sazid to go Police station and he went to PS Sultan Puri."

During her crossexamination DW4 - Smt. Gulshan has deposed that accused Sazid is her would be soninlaw. The family of Sazid consists of his mother, father, three sisters, one brother and bhabhi. The sisters of Sazid are already married and they are living separately. Sazid is residing with his mother and father at Aman Vihar. The distance between their house and the house of Sazid is about 2/3 kms. In her family except her there are two sons and one daughter and all they are residing together. She came to know that Sazid has been arrested by the Police on 05/04/2009 by the father of Sazid. She did not visit in the PS after the arrest of accused Sazid nor she made any complaint to the Police Officers that Sazid had been falsely implicated in this case. Voluntarily, she deposed that she had gone to the house of Sazid where one Police Official namely ASI Rajinder was present to whom she had told that Sazid has been falsely implicated in this case. She had not given anything in writing or any complaint in writing that Sazid has been falsely implicated. Voluntarily, she deposed that she does not know writing. She does not know the date when prosecutrix (name withheld) 99 of 166 100 FIR No. 121/09 PS - Sultan Puri had come to her house. She did not made any call to the Police at 100 number when prosecutrix (name withheld) had come to her house. She did not talk to the parents of accused Sazid about the fact disclosed by prosecutrix (name withheld). She did not try to search out the whereabouts of prosecutrix (name withheld). Sazid had stayed at her house in the night many times after his engagement with her daughter Farah Shaify. She negated the suggestion that prosecutrix (name withheld) had not visited to their house at any point of time and she had not met her daughter Farah or that Sazid had not visited her house on 03/04/2009 and not stayed there for about two days. Accused Sazid is also son of her nanad. She negated the suggestion that she is deposing falsely to save the accused Sazid as her relative and would be soninlaw.

On careful perusal and analysis of the testimony of DW4 - Smt. Gulshan, it is found that she is the would be motherinlaw of accused Sazid and is well known to accused Sazid. In her examination inchief she has deposed that on 05/04/2009, she came to know that a false case was registered against Sazid and she advised Sazid to go to the Police Station and he went to PS - Sultan Puri. If, in the estimation of 100 of 166 101 FIR No. 121/09 PS - Sultan Puri DW4 - Smt. Gulshan, a false case was registered against her would be soninlaw/accused Sazid, then why DW4 - Smt. Gulshan did not make any complaint against the alleged false registration of the case against her would be soninaw/accused Sazid to the Police/Senior Police officers or to any Court, the reasons for the same must be known to her. It clearly indicates that, Had a false case been registered against accused Sazid, DW4 - Smt. Gulshan, his would be motherinlaw must have made the complaint to the Police/Senior Police officers or to any Court.

Further, DW4 - Smt. Gulshan during her examinationin chief has propounded a Theory that, "On 03/04/2009, Sazid came to my house and he stayed there for two days", but the said theory so propounded has not at all been made probable, much established by any cogent evidence. Moreover, the said theory, so propounded by DW4 - Smt. Gulshan, was not put to PW1 - prosecutrix during her incisive and lengthy crossexamination on behalf of accused Sazid. Nor a single word regarding the said theory, so propounded, has been uttered by accused Sazid during his statement recorded u/s 313 Cr.P.C. In the circumstances, the said theory, so floated by DW4 - Smt. Gulshan is 101 of 166 102 FIR No. 121/09 PS - Sultan Puri merely an afterthought and falls flat on the ground and the testimony of DW4 - Smt. Gulshan does not inspires confidence and she is a procured witness.

DW2 - Sharafat in his examinationinchief had deposed that : "I am a driver by way of profession and driving the truck. In January - April 2009 I was driving the truck bearing No. HR38 H7291. I know Mustakeem as he is my brother inlaw and was working with me as labour since January, 2009. Mustakeem was with me on 02/04/2009 and 03/04/09 as we went to Gurgaon for delivering the breaks there. On 03/04/2009 I received a telephonic call from my fatherinlaw namely Riaz Ahmad who narrated me that one case is registered against Sazid in PS Sultan Puri. I narrated the same to Mustakeem. Thereafter Mustakeem left Gurgaon and reached at Delhi at his house."

During his crossexamination DW2 - Sharafat has deposed that he is driver by profession and at present he is driving vehicle No. UP17T0395. Sh. Bhushan Jain was driver of the owner of truck No. HR38H7291. He was getting Rs. 2,000/ p.m. from Sh. Bhushan Jain. He (Sh. Bhushan Jain) did not used to (give) any receipt regarding 102 of 166 103 FIR No. 121/09 PS - Sultan Puri receiving of his (DW2) salary. He did not use to put his attendance anywhere. He is not having any documentary proof that he was the driver at truck No. HR38H7291 neither Sh. Bhushan Jain was having any documentary proof that he (DW2) was the driver of the above said truck. Accused Mustakeem is his real brotherinlaw. Accused Mustakeem was residing with him about 23 months prior to 23 of the month in 2009 but he does not know the month as he is not much educated. Mustakeem was doing the labour work of loading and unloading bricks with him. He used to made payment to the Mustakeem for his labour and the labour charges were Rs. 50/ or Rs. 60/ and the labour charges were credited in the account of owner of the truck. They used to take bricks at different places of Gurgaon daily in the nights and used to come back in the same night. He does not remember the date when he came to know that Mustakeem has been arrested by the Police. He received the telephone call from his fatherinlaw that Mustakeem had named in the case at about 7:00 pm but he does not remember its date. He I does not remember the date of the incident of the present case. He never visited in any PS in connection with the present case nor he wrote to any Police Officers that Mustakeem has been falsely 103 of 166 104 FIR No. 121/09 PS - Sultan Puri implicated in this case. He negated the suggestion that he was tutored before his examinationinchief or that he is deposing falsely to save accused Mustakeem who is his brotherinlaw.

On careful and analysis of the testimony of DW2 - Sharafat, it is found that he is the brotherinlaw (Jija) of accused Mustakeem and well known to accused Mustakeem.

DW2 - Sharafat, during his examinationinchief has propounded a Theory that, "Mustakeem, his brotherinlaw was working with him as labour since January, 2009 and Mustakeem was with him on 02/04/2009 and 03/04/2009 as they went to Gurgaon for delivering the bricks there", but the said theory, so propounded has not at all been made probable much established by any cogent evidence. Nor any document regarding DW2 - Sharafat being working as Driver on the truck bearing No. HR38H7321 has been produced and proved on the record. Nor any document regarding his employment with Sh. Bhushan Jain, owner of Truck No. HR38H7291 nor any document regarding receipt of salary from his employer Sh. Bhushan Jain nor any attendance 104 of 166 105 FIR No. 121/09 PS - Sultan Puri register have been produced and proved on the record. During his cross examination, DW2 - Sharafat has deposed that accused Mustakeem is his real brotherinlaw. He does not remember the date when he came to know that Mustakeem has been arrested by the Police. He never visited any PS in connection with the present case nor he wrote to any Police Officers that Mustakeem had been falsely implicated in this case. Since, accused Mustakeem was the brotherinlaw (Sala) of DW2 - Sharafat and if in the estimation of DW2 - Sharafat, accused Mustakeem, his real brotherinlaw was with him on 02/04/2009 and 03/04/2009 had been falsely implicated by the Police, why he did not visit any Police Station in connection with the present case? Why he did not write or lodge any report with the Police Officers? No explanation in this regard has been placed by DW2 - Sharafat on the record. It clearly indicates that, Had accused Mustakeem been falsely implicated in the case, DW2 - Sharafat, his Jija must have made the complaint to Police/Senior Police officers or to the Court. Nor even a single word regarding the said theory, so propounded by DW2 - Sharafat has been uttered by accused Mustakeem during his statement recorded u/s 313 Cr.P.C.

105 of 166 106 FIR No. 121/09 PS - Sultan Puri In the circumstances, the said theory, so propounded by DW2 - Sharafat, is merely an afterthought and falls flat on the ground. DW2 Sharafat is a procured witness and his testimony does not inspire confidence.

21. It is well settled that rape, is crime and not a medical condition. Rape is a legal term and not a diagnosis to be made by the medical officer treating the victim.

It is to be noticed that the opinion expressed by Modi in Medical jurisprudence and Toxicology (Twenty First Edition) at page 369 which reads as : "Thus to constitute the offence of rape it is not necessary that there should be complete penetration of penis with emission of semen and rupture of hymen. Partial penetration of the penis within the labia majora or the vulva or pudenda with or without emission of semen or even an attempt at penetration is quite possible to commit legally the offence of rape without producing any injury to the genitals or leaving any seminal stains. In such a case the medical officer should mention the negative facts in his report, but should not give his opinion that no rape had been committed. Rape, is crime and not a medical condition. Rape is a legal term and not a diagnosis to be made by the medical 106 of 166 107 FIR No. 121/09 PS - Sultan Puri 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."

On analysing the testimony of PW1 - Prosecutrix in the light of medical evidence vide MLC Ex. PW2/A, Ex. PW15/B on the MLC Ex. PW2/A, gynaecological examination from point 'X' to 'X' Ex. PW16/A on the MLC Ex. PW2/A of the prosecutrix, biological and 107 of 166 108 FIR No. 121/09 PS - Sultan Puri serological evidence Ex. PX, together with the medical examination of accused Sazid Ex. PW15/A on the MLC Ex. PW2/B, as discussed here inbefore, 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 Sazid with PW1 - Prosecutrix without her consent.

22. Learned Counsel for accused Mustakeem submitted that the prosecutrix stated in her statement u/s 164 Cr.P.C. that when she went to the stationery shop for purchasing the stationery item in the way accused Mustakeem and coaccused Sazid were not standing but when she left from the shop accused Sazid was standing inside the road with the motorcycle and the said bike was off and when she reached near the motorcycle accused Sazid press to the prosecutrix for sitting on his motorcycle then the prosecutrix was sit on his motorcycle and after her sitting accused Mustakeem sit behind the prosecutrix. He submitted that 108 of 166 109 FIR No. 121/09 PS - Sultan Puri the prosecutrix has clearly stated in her examination that when she went to the stationery shop accused Sazid was not standing there and when she left from the said shop accused Mustakeem was not standing there and she stated only accused Sazid standing there and he pressed to prosecutrix for sitting on his motorcycle. He submitted that the prosecutrix has clearly stated in her crossexamination that she does not know whether the stationery shop was open or not and she has further clearly stated that the said shop was situated in the market and various persons were coming and going in the said market. He submitted that when the prosecutrix left her house her mother and sister were also present at her house but she did not disclose whether she is going to market for purchasing the stationery items or not. He submitted that when she sat on the motorcycle she did not raise any alarm in the process when she was sitting on the bike. He submitted that the prosecutrix stated that after sitting on the motorcycle accused Mustakeem sat in the back side on the motorcycle and the said Mustakeem put something in front of the nose of the prosecutrix then she become unconscious. He submitted that nothing is on record any material evidence whether Mustakeem put something in front of nose of the prosecutrix. He further 109 of 166 110 FIR No. 121/09 PS - Sultan Puri submitted that as per the prosecutrix accused Sazid and accused Mustakeem went to Baghpat by the said motorcycle with the prosecutrix. He submitted that in the way from Sultan Puri to District Baghpat U.P. various red light were coming and is it possible that the traffic Police officials and other Police official were not present on the red lights so it is not possible that three persons sit on one motorcycle and going to District Baghpat U.P. after crossing the border of Delhi when the prosecutrix has stated that she was in unconscious condition. He further submitted that as per the prosecutrix she was conscious in the Baghpat, U.P. at the house of sister of accused Mustakeem, on the next day in the morning time, the prosecutrix requested to accused Sazid and Mustakeem for releasing herself for going to her house but the prosecutrix has clearly stated in her examination that she did not state to the sister, Jija of accused Mustakeem for releasing herself for going to her house and they forcibly abducted herself. So it clearly points that the prosecutrix manipulated the whole story.

Learned Counsel for accused Sazid submitted that it is next to impossible that two boys travelled with a girl (alleged to be 110 of 166 111 FIR No. 121/09 PS - Sultan Puri unconscious) in (on) a bike from Delhi to UP and no Traffic Police of (or) public witness report this matter to Police. He further submitted that there is no public witness in this matter.

I have carefully perused and analysed the evidence on record.

The testimony of PW1 - prosecutrix has been reproduced, discussed and analysed hereinbefore. At the cost of repetition, the testimony of PW1 - prosecutrix has been found to be natural, clear, cogent, convincing and inspiring confidence. There is nothing in her statement to suggest that she had any animus against the accused to falsely implicate them in the case. Her version on the core spectrum of crime has remained intact.

At the cost of repetition, PW1 - prosecutrix in her examinationinchief has specifically deposed which is reproduced and reads as under : "On 02/04/2009 I had gone to the book store for purchasing book of 10 standard as I was studying in 10th standard in National Open th Schooling. At about 9:30 p.m. after purchasing book from the store I was heading towards my house, I saw that accused Sazid was standing on the road near the book store. When I was passing from his side he 111 of 166 112 FIR No. 121/09 PS - Sultan Puri stopped the bike in front of me. He asked me to sit down on his bike as he will drop me at my house but I refused on which he forcibly pulled my hand and made me to sit on the bike. At the same time one another boy Mustakeem came from the back side and put a handkerchief on my mouth and sat down on my back. I become unconscious. On the next day I gained consciousness and found myself at Bagpat. I inquired from the sister of Mustakeem as to where I am to which she replied that it is Bagpat. Accused Sazid attended one telephone on his mobile and he came to know that a complaint has been filed by my father. I heard this fact when Sazid and Mustakeem were discussing with each other. After this, I was forcibly taken to Meerut Railway Station by Sazid and Mustakeem. Accused persons purchased two tickets from Meerut to Gwalior. I asked both the accused persons to leave me as my father has lodged complaint and you will be in trouble on which accused Sazid gave me slap and made me sit in the train. At about 7:30 8:00 p.m. we i.e. me and Sazid reached at Gwalior. I told to Sazid to leave me alone and sent me to my parents otherwise, I will make noise. Accused Sazid purchased two tickets from Gwalior to New Delhi and we boarded the train heading towards Delhi. In the train we met two three friends of Sazid who discussed something with the accused. When we reached at Delhi Railway Station we returned back to UP by bus. We went to the house of friend of the accused at UP there the parents of friend of accused Sazid refused to allow us enter in their house. The witness pointed out towards Mustakeem and Sazid present in the Court today.

On 04/04/2009, we started from UP and reached on the intervening night of 04/04/200905/04/2009, we came back to Delhi at about 1:00 a.m. (night). We went to the house of brother of accused Sajid, there Sajid served meals to me, after eating the same, I felt unconscious. The accused Sajid had committed rape upon (her) forcibly.

112 of 166 113 FIR No. 121/09 PS - Sultan Puri When, in the morning on 05/04/2009 I got, I found myself naked, having no clothes on my body. I asked Sajid as to why he had committed this act on me to which he replied that it was his wish. On 05/04/2009, accused Sajid told me that he is going to leave me at my house. Brother of accused told Sajid that I should be left at the PS instead of at my house. When we were near the PS - Sultan Puri, the accused forcibly made me consume/drink poison and put the same forcibly in my mouth in order to kill me. Even I refused to consume the same. When I reached the PS, I told the Lady Police official that I have been forcibly made to consume/drink poison. I was immediately taken to SGM Hospital, where I was medically treated for 45 days. Thereafter on 09/04/2009, I was produced before the Court and next date was given on 21/04/2009, on which date my statement was recorded by the Judge Sahab. The same is Ex. PW1/A1 to A3 signed by me at point 'A'. I signed 5 pages. I was medically examined at SGM Hospital, the MLC is mark 'A' and my thumb impression is at point 'B'. My undergarments were taken by the doctor and other medical treatment was given. My date of birth is 10/07/1993. I have studied in10th class in Govt. Sarvodaya Kanya Vidhalaya, Nangloi. I can identify the brother of accused Sajid and sister of Mustakeem, if shown to me. I can also identify my clothes, if shown to me. Both the accused are present in the Court today. The accused be punished in accordance with law and they should be taught a lesson so that, they could not spoil the life of any other girl in future. I know the accused Sajid as he was introduced to me by one of my neighbour Phool Chand. He used to tease me and I had told this to my mother also, to which she asked me to ignore the same. I know accused Mustakeem, as he was involved in the present case and he was a friend of Sajid."

113 of 166 114 FIR No. 121/09 PS - Sultan Puri There is nothing in the crossexamination of PW1 - prosecutrix so as to impeach her creditworthiness. She has withstood the rigors of crossexamination without being shaken.

As regards, the plea raised by the Learned Counsel that various persons were coming and going in the market is concerned, the same is found to be vague. It is not made clear by the Learned Counsel for accused Mustakeem as to what benefit he intends to reap by raising the said plea. It is not the case of accused Mustakeem that the alleged public persons who were coming and going in the market have witnessed the events or that they were cited as witnesses by the prosecution and have been withheld by the prosecution.

Prosecution can be expected to examine only those who have witnessed the events and not those who have not seen it. Though, the neighbourhood may be replete with other residents also.

In case 'State of Rajasthan Vs. Teja Ram & Ors.', AIR 1999 SC 1776, the Hon'ble Supreme Court has held that : 114 of 166 115 FIR No. 121/09 PS - Sultan Puri "The overinsistence on witnesses having no relation with the victims often results in criminal justice going away. When any incident happens in a dwelling house, the most natural witnesses would be the inmates of that house. It is unpragmatic to ignore such natural witnesses and insist on outsiders who would not have even seen anything. If the Court has discerned from the evidence or even from the investigation records that some other independent person has witnessed any event connecting the incident in question, then there is a justification for making adverse comments against nonexamination of such a person as a prosecution witness. Otherwise, merely on surmises the Court should not castigate the prosecution for not examining other persons of the locality as prosecution witnesses. The prosecution can be expected to examine only those who have witnessed the events and not those who have not seen it though the neighbourhood may be replete with other residents also."

Nonjoining of the public witness does not falsify the case of the prosecution which is otherwise proved on record by clear, cogent and convincing evidence.

It is a matter of common experience that public persons are reluctant to assist the Police in the investigation.

In case Nirmal Singh & Ors. Vs. State 2011 III AD (DELHI) 699, the Hon'ble Delhi High Court has held that : 115 of 166 116 FIR No. 121/09 PS - Sultan Puri "It is a known fact that the persons of the public are reluctant to join the Police in the investigation of any case as they do not want to undertake unpleasant task of attending the Police Station and the Court for giving evidence."

The mere fact of nonjoining a public witness, will not ipso facto make the evidence of the Police witnesses suspect, unreliable or untrustworthy. (Ref. 'Abdul Mura Salim Vs. State' 2005 (8) JCC 1776).

As regards the plea raised by the Learned Counsel for accused Mustakeem, "when the prosecutrix left her house her mother and sister were also present at her house but she did not disclose whether she is going to market for purchasing the stationery items or not", is concerned, the information regarding the same must have been obtained from PW1 - prosecutrix during her incisive and lengthy cross examination. She was the only competent witness, who would have been fully capable of explaining the factual situation. For failure to do so, accused is to blame himself and none else.

116 of 166 117 FIR No. 121/09 PS - Sultan Puri It is settled law that if there is no crossexamination of a prosecution witness in respect of a statement of fact, it will only show the admission of that fact (Ref.: Wahid Ahmed and Ors. Vs. State (NCT of Delhi) 2011 VII AD (DELHI) 276).

As regards the plea that, there is nothing on record any material evidence whether accused Mustakeem put something in front of nose of the prosecutrix, due to which she became unconscious, is concerned, PW1 - prosecutrix in her examinationinchief has specifically deposed that accused Mustakeem came from the back side and put a handkerchief on her mouth and sat down on her back and she became unconscious.

At the cost of repetition, the relevant part of the examinationinchief of PW1 - prosecutrix is reproduced and reads as under : "On 02/04/2009 I had gone to the book store for purchasing book of 10th standard as I was studying in 10th standard in National Open Schooling. At about 9:30 p.m. after purchasing book from the store I was heading towards my house, I saw that accused Sazid was standing on the road near the book store. When I was passing from his side he 117 of 166 118 FIR No. 121/09 PS - Sultan Puri stopped the bike in front of me. He asked me to sit down on his bike as he will drop me at my house but I refused on which he forcibly pulled my hand and made me to sit on the bike. At the same time one another boy Mustakeem came from the back side and put a handkerchief on my mouth and sat down on my back. I become unconscious."

(Underlined by me) So far as the plea raised by the Learned Counsel for the accused that, nothing is on record any material evidence whether Mustakeem put something in front of the nose of the prosecutrix, is concerned the sight cannot be lost of the fact that the incident is of dated 02/04/2009 and the medical examination of PW1 - prosecutrix was conducted on 05/04/2009. During this period from 02/04/2009 till 05/04/2009, one is left wandering as to how, any element of intoxicating or stupefying substance could be expected to be remained in existence. As regards the nature of the intoxicating substance, is concerned, it must be within the especial knowledge of accused Mustakeem and Sazid, due to the inhaling of which, the prosecutrix became unconscious. Section 106 of the Indian Evidence Act, 1872 provides for burden of proving fact especially within knowledge.

It reads as under : 118 of 166 119 FIR No. 121/09 PS - Sultan Puri "106. Burden of proving fact especially within knowledge. When any fact is especially within the knowledge of any person, the burden of proving that fact is upon him."

As regards the plea raised by the Learned Counsel for accused Mustakeem that on the way from Sultan Puri to District Baghpat U.P. various red light were coming and is it possible that the traffic Police officials and other Police official were not present on the red lights so how it is possible that three persons sitting on one motorcycle and going to District Baghpat U.P. after crossing the border of Delhi when the prosecutrix has stated that she was in unconscious condition, is concerned, the testimony of PW1 - prosecutrix has been reproduced, discussed and analysed hereinbefore and has been found to be natural, clear, cogent, convincing and inspiring confidence. Moreover, the facts regarding which the plea raised must be within the especial knowledge of the accused as to how they managed the affairs and the burden for proving the same was upon them. It cannot be said that prosecution must meet each and every hypothesis put forward by the accused howsoever far fetched and fanciful it may be. At the cost of repetition, Section 106 of the Indian Evidence Act, 1872 provides for burden of 119 of 166 120 FIR No. 121/09 PS - Sultan Puri proving fact especially within knowledge and lays down that when any fact is especially within the knowledge of any person, the burden of proving that fact is upon him.

As regards the plea raised by the Learned Counsel for accused Mustakeem that, as per the prosecutrix she was conscious in the Baghpat, U.P. at the house of sister of the accused Mustakeem, on the next day in the morning time, the prosecutrix requested to accused Sazid and Mustakeem for releasing herself for going to her house but the prosecutrix has stated in her examination that she did not state to the sister, Jija of accused Mustakeem for releasing herself for going to her house and they forcibly abducted herself and that the prosecutrix has manipulated the whole story, is concerned, the testimony of PW1 - prosecutrix has been reproduced, discussed and analysed hereinbefore and the testimony of PW1 - prosecutrix has been found to be natural, clear, cogent, convincing and inspiring confidence. When a minor girl after making unconscious by administering a stupefying substance by putting a handkerchief on her mouth, is brought to a far off place at Baghpat, U.P. at an unknown place, who is under the dominance, threat 120 of 166 121 FIR No. 121/09 PS - Sultan Puri and intimidation of the accused; one is left wandering as to how it is expected that she would gather the courage in such adverse circumstances to ask for help from the persons who were totally stranger and unknown to her.

In the circumstances, nonasking to the sister, Jija of co accused Mustakeem for releasing herself for going to her house by the prosecutrix, does not falsify the case of the prosecution, which is otherwise proved on record by clear, cogent and convincing evidence.

So far as the plea of Learned Counsel for accused Mustakeem that, when she (PW1 - prosecutrix) sat on the motorcycle she did not raise any alarm in the process when she was sitting on the bike, is concerned, PW1 - prosecutrix during her examinationinchief has specifically deposed which is reproduced and reads as under : "When I was passing from his side he stopped the bike in front of me. He asked me to sit down on his bike as he will drop me at my house but I refused on which he forcibly pulled my hand and made me to sit on the bike. At the same time one another boy Mustakeem came from the back side and put a handkerchief on my mouth and sat 121 of 166 122 FIR No. 121/09 PS - Sultan Puri down on my back. I become unconscious."

(Underlined by me) When a minor girl is forcibly made to sit on the bike by pulling her hand and is made unconscious by administering her some stupefying substance by putting a handkerchief on her mouth, one is left wandering as to how it is expected that she would gather the courage in such adverse circumstances to raise hue and cry.

In the circumstances, there is no substance in the plea so raised by the Learned Counsel for the accused.

23. Learned Counsel for accused Mustakeem submitted that the accused Mustakeem was doing a job work at the Truck at District Baghpat, U.P. prior to the said incident in this regard accused Mustakeem produced the defence evidence and the witness namely Sh. Sarafat clearly stated before the Court that on that day accused Mustakeem was going to labour work at the Truck with him and he received a telephonic call from the father of Mustakeem then he alongwith accused 122 of 166 123 FIR No. 121/09 PS - Sultan Puri Mustakeem reached at Delhi and he produced Mustakeem to the Police so it clearly shows that accused Mustakeem did not commit any offence with prosecutrix because if he had committed any offence then why he would have surrendered before the Police of PS Sultan Puri, he himself approached the Police Station for getting the natural justice.

I have carefully perused and analysed the evidence on record.

In his defence, accused Mustakeem has examined DW2 - Sharafat, his brotherinlaw (Jija). At the cost of repetition, DW2 - Sharafat, during his examinationinchief has propounded a Theory that, "Mustakeem, his brotherinlaw was working with him as labour since January, 2009 and Mustakeem was with him on 02/04/2009 and 03/04/2009 as they went to Gurgaon for delivering the bricks there", but the said theory, so propounded has not at all been made probable much established by any cogent evidence. Nor any document regarding DW2 - Sharafat being working as Driver on the truck bearing No. HR38H7321 has been produced and proved on the record. Nor any document regarding his employment with Sh. Bhushan 123 of 166 124 FIR No. 121/09 PS - Sultan Puri Jain, owner of Truck No. HR38H7291 nor any document regarding receipt of salary from his employer Sh. Bhushan Jain nor any attendance register have been produced and proved on the record. During his cross examination, DW2 - Sharafat has deposed that accused Mustakeem is his real brotherinlaw. He does not remember the date when he came to know that Mustakeem has been arrested by the Police. He never visited any PS in connection with the present case nor he wrote to any Police Officers that Mustakeem had been falsely implicated in this case. Since, accused Mustakeem was the brotherinlaw (Sala) of DW2 - Sharafat and if in the estimation of DW2 - Sharafat, accused Mustakeem, his real brotherinlaw was with him on 02/04/2009 and 03/04/2009 had been falsely implicated by the Police, why he did not visit any Police Station in connection with the present case? Why he did not write or lodge any report with the Police Officers? No explanation in this regard has been placed by DW2 - Sharafat on the record. It clearly indicates that, Had accused Mustakeem been falsely implicated in the case, DW2 - Sharafat, his Jija must have made the complaint to Police/Senior Police officers or to the Court. Nor even a single word regarding the said theory, so propounded by DW2 - Sharafat has been uttered by accused Mustakeem 124 of 166 125 FIR No. 121/09 PS - Sultan Puri during his statement recorded u/s 313 Cr.P.C.

In the circumstances, the said theory, so propounded by DW2 - Sharafat, is merely an afterthought and falls flat on the ground. DW2 Sharafat is a procured witness and his testimony does not inspire confidence.

In the circumstances, there is no substance in the plea so raised by the Learned Counsel for the accused.

24. Learned Counsel for accused Mustakeem submitted that as per the prosecutrix statement, the prosecutrix stayed at the house of the sister of the Mustakeem at Baghpat, U.P. only one night and no any offence under Section 376 IPC was committed. She alongwith co accused Sazid when came at Delhi then they stayed at the house of the brother of coaccused Sazid then the said offence was committed with the prosecutrix as per alleged history.

I have carefully perused and analysed the evidence on 125 of 166 126 FIR No. 121/09 PS - Sultan Puri 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.

It is not made clear by the Learned Counsel for Mustakeem as to what benefit he intends to reap by raising the said repetitive plea.

At the cost of repetition, PW1 - prosecutrix in her examinationinchief has specifically deposed : "On 02/04/2009 I had gone to the book store for purchasing 126 of 166 127 FIR No. 121/09 PS - Sultan Puri book of 10th standard as I was studying in 10th standard in National Open Schooling. At about 9:30 p.m. after purchasing book from the store I was heading towards my house, I saw that accused Sazid was standing on the road near the book store. When I was passing from his side he stopped the bike in front of me. He asked me to sit down on his bike as he will drop me at my house but I refused on which he forcibly pulled my hand and made me to sit on the bike. At the same time one another boy Mustakeem came from the back side and put a handkerchief on my mouth and sat down on my back. I become unconscious. On the next day I gained consciousness and found myself at Bagpat. I inquired from the sister of Mustakeem as to where I am to which she replied that it is Bagpat. . . . . . ."

"On 04/04/2009, we started from UP and reached on the intervening night of 04/04/200905/04/2009, we came back to Delhi at about 1:00 a.m. (night). We went to the house of brother of accused Sajid, there Sajid served meals to me, after eating the same, I felt unconscious. The accused Sajid had committed rape upon (her) forcibly. When, in the morning on 05/04/2009 I got, I found myself naked, having no clothes on my body. I asked Sajid as to why he had committed this act on me to which he replied that it was his wish. . . . . . ."

". . . . . . . I know accused Mustakeem, as he was involved in the present case and he was a friend of Sajid."

(Underlined by me) There is nothing in the crossexamination of PW1 -

127 of 166 128 FIR No. 121/09 PS - Sultan Puri prosecutrix so as to impeach her creditworthiness. She has withstood the rigors of crossexamination without being shaken. 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 Mustakeem to falsely implicate him in the case.

In the circumstances, there is no substance in the plea so raised by the Learned Counsel for the accused.

25. Learned Counsel for accused Mustakeem submitted that when the prosecutrix reached at the Police Station at Sultan Puri then before W/Constable Raj Kumari prosecutrix stated that if they can not live together (with accused Sazid) but they can finish their life together (accused Sazid) in this regard W/Constable Raj Kumari has stated in her statement u/s 161 Cr.P.C. and the concerned IO also mentioned it in the chargesheet and in this regard the matter was also published in the newspaper. The copy of the said newspaper has also been filed by the accused Mustakeem on the record.

128 of 166 129 FIR No. 121/09 PS - Sultan Puri I have carefully perused and analysed the evidence on record.

PW7 - W/Constable Raj Kumari in her examinationinchief has deposed that on 05/04/2009, she was present at PS - Sultan Puri. At about 2:30 p.m. on the direction of the then SHO PS - Sultan Puri, she accompanied the IO SI Mukesh Rana and the accused Sazid present in the Court (correctly identified by the witness) who was in the custody of Constable Devender (Be read as 'Ravinder') with SI Mukesh and one girl namely prosecutrix (name withheld) who was also taken from the PS in my custody to SGM Hospital for medical examination where they were medically examined. After the medical examination of the prosecutrix Doctor handed over two pullindas sealed with the seal of SGMH and one sample seal of the same specimen to IO in her presence and the same were taken into possession by the IO ASI Rajender Singh vide memo Ex. PW7/A which bears her signature at point 'A'. IO recorded her statement.

During her crossexamination, PW7 - W/Constable Raj Kumari has deposed that : 129 of 166 130 FIR No. 121/09 PS - Sultan Puri "We remained present at SGM Hospital upto 9:00 p.m. On that day, I was on duty from 8:00 a.m. to 4:00 p.m. but I continued on the duty for the period mentioned above as there are no fixed hours for our duties. I do not remember if the IO had made any departure or arrival entry regarding our visit to the Hospital and about our arrival from the Hospital. It is wrong to suggest that I had not accompanied the prosecutrix to SGM Hospital with the IO or that I am deposing falsely or that I had signed the Ex. PW7/A at the PS itself."

On careful perusal and analysis the testimony of PW7 - W/Constable Raj Kumari is found to be clear, cogent and inspiring confidence. There is nothing in her crossexamination so as to impeach her creditworthiness. She has deposed regarding the facts as to what she acted perceived and observed.

So far as the plea raised by the Learned Counsel for accused Mustakeem that when the prosecutrix reached at the Police Station at Sultan Puri then before W/Constable Raj Kumari prosecutrix stated that if they can not live together (with accused Sazid) but they can finish their life together (accused Sazid) in this regard W/Constable Raj Kumari has stated in her statement u/s 161 Cr.P.C., is concerned, it is evident from the record that during the crossexamination of PW7 - W/Constable Raj 130 of 166 131 FIR No. 121/09 PS - Sultan Puri Kumari, none of the accused voiced their concerns or raised any apprehension, on the facts/aspects regarding which the plea has been raised. Nor she was confronted with her statement u/s 161 Cr.P.C., if in the estimation of the Learned Counsel for the accused, the deposition made by PW7 - W/Constable Raj Kumari was not in consonance with her statement recorded u/s 161 Cr.P.C. She was the only competent witness who would have been fully capable of explaining correctly the factual situation. For failure to do so, accused Mustakeem is to blame himself and none else.

So far as the submission made by the Learned Counsel for accused Mustakeem that the concerned IO also mentioned in the charge sheet regarding utterances of the prosecutrix, to die together if they cannot live together, is concerned, it is not made clear by the Learned Counsel as to what benefit he intends to reap by raising the said plea when undisputably, chargesheet is not an encyclopedia but a conclusion drawn by the Investigating Officer on the basis of materials collected during investigation. Further, it is evident from the record that neither during the crossexamination of PW10 - ASI Rajinder Singh, initial IO nor during the crossexamination of PW17 - SI Ashok, the subsequent 131 of 166 132 FIR No. 121/09 PS - Sultan Puri IO, none of the said accused voiced any apprehension on the 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.

So far as the submission made by the Learned Counsel for accused Mustakeem regarding the utterances of the prosecutrix, to die together if they cannot live together, the matter was also published in the newspapers is concerned, it is not made clear by the Learned Counsel for the accused as to what benefit he intends to reap by raising the said plea.

At the cost of repetition, it is settled law that if there is no crossexamination of a prosecution witness in respect of a statement of fact, it will only show the admission of that fact (Ref.: Wahid Ahmed and Ors. Vs. State (NCT of Delhi) 2011 VII AD (DELHI) 276).

In the circumstances, there is no substance in the plea so raised by the Learned Counsel for the accused.

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26. Learned Counsel for accused Mustakeem submitted that the prosecutrix got recorded her statement u/s 164 Cr.P.C. from the custody of her parents after 8 days of the discharge from the Hospital so it is possible that afterthought the prosecutrix got recorded her statement u/s 164 Cr.P.C. against the accused persons because the prosecutrix and main accused Sazid belong to different religions/castes so due to the pressure of her parents prosecutrix got recorded her statement u/s 164 Cr.P.C. and before the Court.

I have carefully perused and analysed the evidence on record.

The statement u/s 164 Cr.P.C. dated 21/04/2009 Ex. PW14/A (also Ex. PW1/A1 to Ex. PW1/A3) was recorded by PW14 - Sh. S. S. Malhotra, Learned ADJ, Karkardooma Courts, after being satisfied that the prosecutrix was making the statement voluntarily and without any pressure.

PW14 - Sh. S. S. Malhotra, Learned ADJ during his examinationinchief has specifically deposed that on 21/04/2009, he was 133 of 166 134 FIR No. 121/09 PS - Sultan Puri posted as MM at Rohini Courts and was working as Link Court of Sh. Naveen Gupta, Learned MM. On that day, an application was moved by the IO was assigned to him to record the statement of prosecutrix (name withheld) D/o Ajit Kumar, aged about 15½ years, u/s 164 Cr.P.C. Witness/prosecutrix (name withheld) was produced before him by the IO SI Ashok and was correctly identified by him, who had come with her mother from her house. The signature of the IO were obtained in this regard. He asked some rational questions to the victim about her age and about the name of her parents etc. so as to ascertain the volunteerness of the witness. Thereafter, he was satisfied that the victim was making her statement voluntarily and without any pressure and she is competent to depose. Therefore, he recorded statement of prosecutrix (name withheld). The statement u/s 164 Cr.P.C. of witness/prosecutrix (name withheld) is Ex. PW14/A (also Ex. PW1/A1 to A3) which bears his signatures at point 'A' and prosecutrix (name withheld) signed the same at points 'B' and 'C'. He certified regarding the correctness of the statement.

Despite grant of opportunity, PW14 - Sh. S. S. Malhotra, Learned ADJ was not crossexamined on behalf of accused.

134 of 166 135 FIR No. 121/09 PS - Sultan Puri So far as the plea raised by the Learned Counsel for the accused Mustakeem that prosecutrix made the statement u/s 164 Cr.P.C. under the pressure of her parents and had come from the custody of her parents, after eight (08) days of her discharge from the Hospital and is an afterthought, is concerned, the same is found to have no substance, as during her crossexamination she has negated the suggestions that she has come to the Court from her house for giving statement u/s 164 Cr.P.C. before the Court. Vol. She has come from the Hospital and also negated the suggestion that she had given the statement u/s 164 Cr.P.C. before the Magistrate on the insistence of her parents.

The relevant part of the crossexamination of PW1 - prosecutrix recorded on 27/07/2010 reads as under : "It is wrong to suggest that I had come to the Court from my house for giving statement u/s 164 Cr.P.C. before the Court. Vol. I had come from the Hospital. It is wrong to suggest that I ad given statement u/s 164 Cr.P.C. before the Magistrate on the insistence of my parents."

At the cost of repetition, the testimony of PW1 - prosecutrix has been found to be in consonance with the statement u/s 164 Cr.P.C.

135 of 166 136 FIR No. 121/09 PS - Sultan Puri Ex. PW14/A (also Ex. PW1/A1 to A3).

In the circumstances, there is no substance in the plea so raised by the Learned Counsel for the accused.

27. Learned Counsel for accused Mustakeem submitted that main accused Sazid and prosecutrix were well known to each other and they used to meet prior to the said incident, the said fact prosecutrix admitted in her crossexamination so the prosecutrix and accused Sazid were well known to each other and they wanted to marry but they could not succeed. Accused Mustakeem is the friend of accused Sazid and the 136 of 166 137 FIR No. 121/09 PS - Sultan Puri prosecutrix wanted the help from accused Mustakeem for her marriage but accused Mustakeem did not agree due to this reason the prosecutrix intentionally implicated the accused Mustakeem in the present case.

I have carefully perused and analysed the evidence on record.

As regards the theory propounded by the Learned Counsel for the accused that, "Accused Mustakeem was the friend of accused Sazid and the prosecutrix and accused Sazid wanted to marry and the prosecutrix wanted the help from accused Mustakeem for her marriage but accused Mustakeem did not agree and due to this reason, the prosecutrix intentionally implicated accused Mustakeem in the present case" is concerned, the same has not at all been made probable much established by any cogent evidence. Nor any suggestion regarding the said theory, so propounded, was put to PW1 prosecutrix during her incisive and lengthy crossexamination. What has been suggested to PW1 - prosecutrix during her cross examination recorded on 27/07/2010 is reproduced and reads as under : "It is wrong to suggest that I wanted assistance of 137 of 166 138 FIR No. 121/09 PS - Sultan Puri accused Mustkim to go with my friend other than Sajid as to why I falsely implicated in the present case to accused Mustkim."

In the circumstances, it appears that accused Mustakeem has propounded the said theory in order to save his skin from the clutches of law.

Nor even a single word regarding the said theory, so propounded, was uttered by accused Mustakeem during his statement recorded u/s 313 Cr.P.C. The said theory, so floated, is merely an afterthought and falls flat on the ground.

In the circumstances, there is no substance in the plea so raised by the Learned Counsel for the accused.

28. Learned Counsel for accused Sazid submitted that there are many substantial contradictions and improvements in the statement of the prosecutrix, in the statements recorded u/s 161 Cr.P.C., u/s 164 Cr.P.C. and Evidence recorded before Court, therefore statement of the prosecutrix can not be relied upon. He further submitted that in her statement recorded u/s 161 Cr.P.C. (Mark DA) she admitted her love 138 of 166 139 FIR No. 121/09 PS - Sultan Puri affair with the accused Sazid. She stated that she wants to marry Sazid. She was confronted in her crossexamination dated 15/02/2010. He further submitted that the prosecutrix alleged in her statement recorded u/s 161 Cr.P.C. that the accused committed sexual relationship in a hotel at Meerut thereafter in the statement u/s 164 Cr.P.C. alleged that accused committed rape at the house of his brother in Nangloi. This is a big Contradiction and improvement and goes to the root of the prosecution case and establishes that whole case is a false case. He further submitted that the statement in the examinationinchief of the prosecutrix is not possible that the accused slapped her at Meerut Railway Station and train in which they travelled is empty. Her statement that accused developed friendship with some unknown person and then travelled to unknown place in UP is again unbelievable in any possibility. He further submitted that the allegation of the prosecutrix that accused travelled with prosecutrix in public transport and prosecutrix remained silent out of fair (fear) is totally unreliable as she stated that at Gwalior, once he (she) threatened the accused that she is going to make hue and cry, accused accepted to brought her back to her parents and boarded a train for Delhi then why again she remained silent in other public transport is 139 of 166 140 FIR No. 121/09 PS - Sultan Puri highly unbelievable. No direct bus between any town of UP to the Nangloi. He further submitted that the description, timing and purpose of the visit of the prosecutrix to the alleged stationery shop is self contradictory.

I have carefully perused and analysed the evidence on record.

Although, the related pleas raised by Learned Counsel for accused Mustakeem have been analysed and discussed herein before, yet in the interest of justice, at the cost of repetition, I shall deal with the plea so raised by the Learned Counsel for accused Sazid.

On careful perusal, and analysis of the entire testimony of PW1 - prosecutrix, it transpires that she has described the scenario implicating the accused Sazid and Mustakeem to be the author of the crime. Accused have failed to elicit any material or relevant discrepancies or inconsistencies despite her searching crossexamination. The witness has made some improvements and deposed certain facts which were not stated in the statements u/s 161 Cr.P.C. Mark DA) and u/s 164 Cr.P.C. Ex. PW1/A1 to A3 (also Ex. PW14/A). However, those facts deposed by her do not affect her credibility as there are mere the details of the incident or of some collateral or subsidiary facts, which the witness could not reasonably disclose in the statements u/s 161 Cr.P.C. (Mark DA) and u/s 164 Cr.P.C. (Ex. PW1/A1 to A3). In fact so called improvements are the 'clarifications' or 'elaborations' of facts in response to the questions put to her which she was not supposed to state in the statements u/s 161 Cr.P.C. (Mark DA) and u/s 164 Cr.P.C. (Ex. PW1/A1 to A3). The core facts about the kidnapping, of administrating of a stupefying substance and of the committal of sexual assault and the role 141 of 166 142 FIR No. 121/09 PS - Sultan Puri attributed to both the accused remained identical.

At the cost of repetition, PW1 - prosecutrix in her examinationinchief has specifically deposed : "On 02/04/2009 I had gone to the book store for purchasing book of 10 standard as I was studying in 10th standard in National Open th Schooling. At about 9:30 p.m. after purchasing book from the store I was heading towards my house, I saw that accused Sazid was standing on the road near the book store. When I was passing from his side he stopped the bike in front of me. He asked me to sit down on his bike as he will drop me at my house but I refused on which he forcibly pulled my hand and made me to sit on the bike. At the same time one another boy Mustakeem came from the back side and put a handkerchief on my mouth and sat down on my back. I become unconscious. On the next day I gained consciousness and found myself at Bagpat. I inquired from the sister of Mustakeem as to where I am to which she replied that it is Bagpat. . . . . . ."

"On 04/04/2009, we started from UP and reached on the intervening night of 04/04/200905/04/2009, we came back to Delhi at about 1:00 a.m. (night). We went to the house of brother of accused Sajid, there Sajid served meals to me, after eating the same, I felt unconscious. The accused Sajid had committed rape upon (her) forcibly. When, in the morning on 05/04/2009 I got, I found myself naked, having no clothes on my body. I asked Sajid as to why he had committed this act on me to which he replied that it was his wish. . . . . . ."

142 of 166 143 FIR No. 121/09 PS - Sultan Puri ". . . . . . . I know accused Mustakeem, as he was involved in the present case and he was a friend of Sajid."

There is nothing in the crossexamination of PW1 - prosecutrix so as to impeach her creditworthiness. She has withstood the rigors of crossexamination without being shaken. 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 Sazid to falsely implicate him in the case.

So far as the plea raised by Learned Counsel for accused Sazid that, the allegation of the prosecutrix that accused travelled with prosecutrix in public transport and prosecutrix remained silent out of fair (fear) is totally unreliable as she stated that at Gwalior, once he (she) threatened the accused that she is going to make hue and cry, accused accepted to brought her back to her parents and boarded a train for Delhi then why again she remained silent in other public transport is highly unbelievable, is concerned, the information as to why she remained silent in other public transport, must have been elicited during her crossexamination. She was the only competent witness who would have been fully capable of explaining correctly the factual 143 of 166 144 FIR No. 121/09 PS - Sultan Puri situation. For failure to do so accused is to blame himself and none else. Non raising of the hue and cry does not falsify the case of the prosecution which is otherwise proved on record by clear, cogent and convincing evidence. The sight cannot be lost of the fact that PW1 - prosecutrix who was under the total dominance, threat and intimidation of the accused Sazid, one is left wandering as to how it is expected that she would gather the courage in such adverse circumstances to raise hue and cry.

In case A. Shankar Vs. State of Karnataka, 2011 VII AD (SC) 37, the Hon'ble Supreme Court has held : "....... Exaggerations per se do not render the evidence brittle. But it can be one of the factors to test the credibility of the prosecution version, when the entire evidence is put in a crucible for being tested on the touchstone of credibility. Therefore, mere marginal variations in the statements of a witness cannot be dubbed as improvements as the same may be elaborations of the statement made by the witness earlier.

Irrelevant details which do not in any way corrode the credibility of a witness cannot be labelled as omission or contradictions.....".

144 of 166 145 FIR No. 121/09 PS - Sultan Puri 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.

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 :

145 of 166 146 FIR No. 121/09 PS - Sultan Puri

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]).

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 : 146 of 166 147 FIR No. 121/09 PS - Sultan Puri "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].

In the circumstances, there is no substance in the plea so raised by the Learned Counsel for the accused.

147 of 166 148 FIR No. 121/09 PS - Sultan Puri

29. Learned Counsel for accused Sazid submitted that from the chargesheet/Final report u/s 173 Cr.P.C. (Page 4) Bottom last two lines - it is crystal clear that the accused himself brought the prosecutrix to the Police Station and at that time prosecutrix gave her first statement to W/Constable Raj Kumari that she voluntarily left her house therefore version of accused Sazid seems to be absolutely correct as such accused is not guilty u/s 363/34 IPC. He further submitted that prosecutrix admitted the writing on Ex. PW1/DB, the afterthought story of the prosecutrix can not be relied upon that she under threat wrote that letter as she did not allege regarding threat/writing of that letter in her statement recorded under section 161 Cr.P.C. or u/s 164 Cr.P.C. or in her examinationinchief.

I have carefully perused and analysed the evidence on record.

Although, the related plea raised by Learned Counsel for accused Mustakeem has been analysed and discussed hereinbefore, 148 of 166 149 FIR No. 121/09 PS - Sultan Puri yet in the interest of justice, at the cost of repetition, I shall deal with the plea so raised by the Learned Counsel for accused Sazid.

With due respect, it appears that the Learned Counsel for accused Sazid has either misread the evidence or has not read the evidence.

So far the plea raised by the Learned Counsel for accused Sazid that, "Accused (Sazid) himself brought the prosecutrix to the Police Station and at that time prosecutrix gave her first statement to W/Constable Raj Kumari that she voluntarily left her house" and that, "prosecutrix admitted the writing on Ex. PW1/DB, the after thought story of the prosecutrix can not be relied upon that she under threat wrote that letter as she did not allege regarding threat/writing of that letter in her statement recorded under section 161 Cr.P.C. or u/s 164 Cr.P.C. or in her examinationinchief", is concerned, it is evident from the record that the said plea does not find corroboration from the testimony of PW7 - W/Constable Raj Kumari as well as the testimony of PW1 - prosecutrix. Moreover, chargesheet/the 'Police Report' under Chapter XII of the Code of Criminal Procedure, 149 of 166 150 FIR No. 121/09 PS - Sultan Puri 1973, is not an encyclopedia but a conclusion drawn by the Investigating Officer (IO) on the basis of the materials collected during investigation.

At the cost of repetition, PW7 - W/Constable Raj Kumari, in her examinationinchief has deposed that on 05/04/2009, she was present at PS - Sultan Puri. At about 2:30 p.m. on the direction of the then SHO PS - Sultan Puri, she accompanied the IO SI Mukesh Rana and the accused Sazid present in the Court (correctly identified by the witness) who was in the custody of Constable Devender (Be read as 'Ravinder') with SI Mukesh and one girl namely prosecutrix (name withheld) who was also taken from the PS in my custody to SGM Hospital for medical examination where they were medically examined. After the medical examination of the prosecutrix Doctor handed over two pullindas sealed with the seal of SGMH and one sample seal of the same specimen to IO in her presence and the same were taken into possession by the IO ASI Rajender Singh vide memo Ex. PW7/A which bears her signature at point 'A'. IO recorded her statement.

During her crossexamination, PW7 - W/Constable Raj 150 of 166 151 FIR No. 121/09 PS - Sultan Puri Kumari has deposed that : "We remained present at SGM Hospital upto 9:00 p.m. On that day, I was on duty from 8:00 a.m. to 4:00 p.m. but I continued on the duty for the period mentioned above as there are no fixed hours for our duties. I do not remember if the IO had made any departure or arrival entry regarding our visit to the Hospital and about our arrival from the Hospital. It is wrong to suggest that I had not accompanied the prosecutrix to SGM Hospital with the IO or that I am deposing falsely or that I had signed the Ex. PW7/A at the PS itself."

During her crossexamination recorded on 19/07/2010, conducted on behalf of accused Sazid, PW1 - prosecutrix has specifically deposed which is reproduced and reads as under : "At this stage, one written letter in Hindi Language is being presented by Learned Defence Counsel for accused Sajid to the witness/prosecutrix (name withheld) and asked whether it has been written by you or not. Witness/prosecutrix (name withheld) replied in affirmative saying that it is in my handwriting and Ex. PW1/DB. Same is being tendered on file today by Learned Defence Counsel for accused Sajid. Vol. The said letter got written by me under pressure from Sajid before administering me poison. I have not mentioned about this letter to any authority. Vol. I was not aware at that time. The letter Ex. PW1/DB bear my signature at point 'A' and thumb impression at point 'B'. It is wrong to suggest that I love Sajid as same has been written by me in the letter Ex. PW1/DB. It is wrong to suggest that I have written letter Ex. PW1/DB of my own sweet will. It is wrong to suggest that I love Sajid 151 of 166 152 FIR No. 121/09 PS - Sultan Puri and I wanted to marry Sajid but my parents was (were) against my relationship with Sajid. It is wrong to suggest that today I am deposing before Court against Sajid under pressure of my parents. It is wrong to suggest that I disappeared from my house of my own on 12/04/2009 (be read as 02/04/2009) and nobody was aware about my disappearance from home including my parents and Sajid. It is wrong to suggest that accused Sajid did not met me anywhere between 12/04/2009 (be read as 02/04/2009) to 15/04/2009 (be read as 05/04/2009) till 12:00 Noon. It is wrong to suggest that accused Sajid had met me for the first time after my disappearance from my home at a distance of 200 meter away from PS - Sultan Puri at about 12:30 Noon on 15/04/2009 (be read as 05/04/2009). It is wrong to suggest that when accused Sajid met me near the PS - Sultan Puri, then I presented letter Ex. PW1/DB to him and I forced him to write in the same manner as I had written on it. It is wrong to suggest that I had stated to Sajid that I had left my house for you and you should also leave your home & life for me. It is wrong to suggest that I forced accused Sajid to write portion 'X' to 'X' of letter Ex. PW1/DB with the threat that if Sajid would not wrote this portion, I will consume unknown poisioning (poisoning) substance which was in my hand to finish my life. It is wrong to suggest that portion 'X' to 'X' of letter Ex. PW1/DB was written by under my aforesaid threat. It is wrong to suggest that accused Sajid snatched unknown poisioning (poisoning) substance after writing portion 'X' to 'X' of Ex. PW1/DB and threw the same on road, as a result of which bottle/shishi broken. It is correct that thereafter accused Sajid forcibly took me to the PS - Sultan Puri and produced me before Police there."

(Underlined by me) 152 of 166 153 FIR No. 121/09 PS - Sultan Puri As regards the plea raised by Learned Counsel for Sazid that, "she (PW1 - prosecutrix) did not allege regarding threat/writing of letter Ex. PW1/DB in her statement recorded u/s 161 Cr.P.C. (Mark DA) or u/s 164 Cr.P.C. (Ex. PW1/A1 to Ex. PW1/A3), is concerned, it is evident from the record that during the crossexamination of PW1 - prosecutrix, the said accused did not voice his concern or raised any apprehension on the said 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 failure to do so, accused is to blame himself and none else.

In the circumstances, there is no substance in the plea so raised by the Learned Counsel for the accused.

153 of 166 154 FIR No. 121/09 PS - Sultan Puri

30. Learned Counsel for accused Sazid submitted that prosecutrix admitted her photograph Ex. PW1/DA. Which is sufficient to show that she was close friend of Sazid as such the story of the prosecution regarding kidnapping etc. is totally false. DW5 - Neeraj also supported the version of accused Sazid.

I have carefully perused and analysed the evidence on record.

As regards the theory floated by the Learned Counsel for Sazid that, "prosecutrix has admitted her photograph Ex. PW1/DA. Which is sufficient to show that she was close friend of Sazid as such the story of the prosecution regarding kidnapping etc. is totally false", is concerned, the said theory is not supported by PW1 - prosecutrix in view of as to what she has deposed in her cross examination recorded on 19/07/2010.

PW1 - prosecutrix during her crossexamination recorded on 19/07/2010 has specifically deposed which is reproduced and reads as under : 154 of 166 155 FIR No. 121/09 PS - Sultan Puri "I am not got this photograph prepared (Maine Yeh Photograph Nahi Khichwaya). It is wrong to suggest that aforesaid photograph Ex. PW1/DA was got snapped alongwith accused Sajid in the area of Pitam Pura, Delhi. It is wrong to suggest that I myself voluntarily got snapped aforesaid photograph with accused Sajid in Pitampura, Delhi."

From the aforesaid narration of PW1 - prosecutrix, it is clearly indicated that she did not get the photograph Ex. PW1/DA prepared and she negated the suggestion that she herself voluntarily got snapped the photograph Ex. PW1/DA with accused Sazid. There is nothing in her crossexamination so as to impeach her creditworthiness. Moreover, PW1 - prosecutrix was not crossexamined on behalf of accused Sazid as to when, on which date the said photograph Ex. PW1/DA was got snapped. Even on this aspect, the testimony of DW5 - Neeraj does not come to the rescue of accused Sazid, who during his crossexamination has specifically deposed that : "The photograph Ex. PW1/DA was clicked about 4 years ago but I cannot tell the date, month and year. I had issued the receipt of the photograph but I have not brought the same today. I cannot produce the receipt book as the same have been destroyed."

155 of 166 156 FIR No. 121/09 PS - Sultan Puri In the circumstances, the said theory floated by Learned Counsel for accused Sazid by way of suggestion to PW1 - prosecutrix, that she herself voluntarily got snapped the aforesaid photograph (Ex. PW1/DA) with accused Sazid in Pitampura, Delhi, which though she negated is found to have no substance and falls flat on the ground.

In the circumstances, there is no substance in the plea so raised by the Learned Counsel for the accused.

31. Learned Counsel for accused Sazid submitted that the prosecutrix's father was also aware about her friendship with accused Sazid therefore he got cut her name from School in the mid of session and get her admitted in School of open learning so that he can keep an eye on his daughter. Prosecutrix gave a false evidence regarding her illness and gave a false excuse that due to short attendance, her name got struck from the School. Relied upon the Court observation dated 27/03/2010 (in crossexamination of the prosecutrix page 1) and Court observed that her attendance in School was 80/86 therefore it is clear that 156 of 166 157 FIR No. 121/09 PS - Sultan Puri prosecutrix is deliberately gave false evidence. The friendship of prosecutrix is also clear from the bare perusal of the FIR.

I have carefully perused and analysed the evidence on record.

The testimony of PW2 - Ajit Kumar, father of the prosecutrix has been reproduced, discussed and analysed hereinbefore. On careful perusal and analysis, the testimony of PW2 - Ajit Kumar has been found to be clear, cogent, reliable and having a ring of truth. There is nothing in his statement to suggest that he had any animus against the accused to falsely implicate him in the case.

So far as the plea raised by the Learned Counsel for accused Sazid, "the prosecutrix's father was also aware about her friendship with accused Sazid therefore he got cut her name from School in the mid of session and get her admitted in School of open learning so that he can keep an eye on his daughter", is concerned, it is evident from the record that during the crossexamination of PW2 - Ajit Kumar, the said accused did not voice his concern or raised any apprehension on 157 of 166 158 FIR No. 121/09 PS - Sultan Puri the said aspects regarding which the said plea has been raised. He was the only competent witness who would have been fully capable of explaining correctly the factual situation. For failure to do so, accused is to blame himself and none else.

As regards the plea raised by the Learned Counsel for accused Sazid that, "Prosecutrix gave a false evidence regarding her illness and gave a false excuse that due to short attendance, her name got struck from the School", is concerned, it is not made clear by the Learned Counsel for the accused as to what benefit he intends to reap by raising the said plea. Moreover, the testimony of PW1 - prosecutrix has been reproduced, discussed and analysed hereinbefore. At the cost of repetition, the testimony of PW1 - prosecutrix has been found to be natural, clear, cogent, convincing and inspiring confidence. There is 158 of 166 159 FIR No. 121/09 PS - Sultan Puri nothing in her statement to suggest that she had any animus against the accused to falsely implicate them in the case. Her version on the core spectrum of crime has remained intact.

In the circumstances, there is no substance in the plea so raised by the Learned Counsel for the accused.

32. Learned Counsel for accused Sazid submitted that no site plan/map was prepared of the alleged house, where rape was alleged to be committed. Not even any such house was identified.

I have carefully perused and analysed the evidence on record.

As regards the plea raised by the Learned Counsel for Sazid that, "no site plan/map was prepared of the alleged house, where rape was alleged to be committed. Not even any such house was identified", is concerned, it is evident from the record that during the crossexamination of PW10 - ASI Rajinder Singh, IO, the said accused did not voice his concern or raised any apprehension on the said aspects 159 of 166 160 FIR No. 121/09 PS - Sultan Puri regarding which the said plea has been raised. He was the only competent witness who would have been fully capable of explaining correctly the factual situation. For failure to do so, accused is to blame himself and none else.

Moreover, the said lapse/irregularity reflect on the investigation, but does not reflect upon the substantive evidence and the probative value of statement of PW1 - prosecutrix made on material and relevant aspects. Nor does it dislodge the substratum of the prosecution case and despite its existence, the clear, cogent, convincing, reliable and trustworthy evidence proved on record bears out the case of the prosecution. The version of PW1 - prosecutrix on the core spectrum of the crime has remained intact.

160 of 166 161 FIR No. 121/09 PS - Sultan Puri In the circumstances, there is no substance in the plea so raised by the Learned Counsel for the accused.

33. Learned Counsel for accused submitted that from the evidence of DW3 - HC Sajjan Singh, it is clear that in her School, prosecutrix called Sazid, when the Teacher got mobile from her and then Teacher reported this matter to Police but the prosecutrix denied all such suggestion to conceal the facts.

I have carefully perused and analysed the evidence on record.

The testimony of DW3 - HC Sajjan Singh had been dealt with hereinbefore. At the cost of repetition, DW3 - HC Sajjan Singh in his examinationinchief has deposed which is reproduced and reads as under : "I am summoned witness and today I have brought the summoned record i.e Rojnamcha register pertaining to DD no. 14 A and 22 A both dated 26/07/2008 and of PS Nangloi. Photocopy of said DD's are Ex. DW3/A and Ex. DW3/B (OSR)."

161 of 166 162 FIR No. 121/09 PS - Sultan Puri I have carefully gone through DD No. 14A and 22A Ex. DW3/A and Ex. DW3/B. As regards the plea raised by Learned Counsel for accused Sazid that "in her School, prosecutrix called Sazid, when the Teacher got mobile from her and then Teacher reported this matter to Police", is concerned, it is not made clear by the Learned Counsel for the accused as to what benefit he intends to reap by raising the said plea. Moreover, not a single word has been uttered by accused Sazid during his statement recorded u/s 313 Cr.P.C. that prosecutrix called accused Sazid in her School, when the teacher got mobile from her. It is also to be noticed that PW1 - prosecutrix in her crossexamination recorded on 15/02/2010 has specifically deposed that : "It is wrong to suggest that I was expelled from the School as one mobile was recovered from me. It is wrong to suggest that pursuant to recovery of mobile phone from me I was asked to bring my mother and I had taken a fake mother and the identity of the fake mother was revealed and due to the aforesaid reason I was expelled from the School. It is wrong to suggest that I was also taken to the PS - Nangloi regarding that recovered mobile phone."

162 of 166 163 FIR No. 121/09 PS - Sultan Puri There is nothing in her crossexamination so as to impeach her creditworthiness. The version of PW1 - prosecutrix on the core spectrum of crime has remained intact.

In the circumstances, there is no substance in the plea so raised by the Learned Counsel for the accused.

34. In view of above and in the circumstances, prosecution has thus categorically proved beyond shadows of all reasonable doubts that on 02/04/2009, at about 9:30 p.m. when after purchasing book from the Book Store, PW1 - prosecutrix was heading towards her house, at House No. F2/222, Shani Bazar Road, Sultan Puri, Delhi, on the road near the Book Store, both the accused Sazid and Mustakeem in furtherance of their common intention kidnapped PW1 prosecutrix, aged about 15½ years (to be exact 15 years 08 months and 22 days), from her legal guardianship without the consent of her guardians, with intent that she may be forced or seduced to illicit intercourse, by forcibly making her sit on the motorcycle and in furtherance of their common intention, accused Mustakeem, who came from the back side, and administered her some 163 of 166 164 FIR No. 121/09 PS - Sultan Puri stupefying substance by putting a handkerchief on her mouth, with intent to facilitate the commission of kidnapping, due to which she became unconscious and both the accused Sazid and Mustakeem, in furtherance of their common intention, took her on the motorcycle to Baghpat, U.P. at the house of sister of accused Mustakeem and in furtherance of their common intention, both the accused Sazid and Mustakeem forcefully took her from Baghpat, U.P. to Meerut Railway Station and then accused Sazid took her by train to Gwalior and thereafter, from Gwalior accused Sazid brought her by train to New Delhi and then took her back to U.P. by bus and thereafter, on the intervening night of 0405/04/2009, accused Sazid brought her to Delhi, at the house of his brother, where he (accused Sazid) mixed some intoxicating substance in her meals, after eating of which she became unconscious and accused Sazid forcibly committed rape upon her without her consent and against her will and then, while taking her from the house of his brother, on the way to the Police Station - Sultan Puri, accused Sazid forcibly made her to consume/drink poison even she refused to consume the same and forcibly put the poison in her mouth in order to kill her.

I accordingly hold accused Sazid and Mustakeem guilty for the 164 of 166 165 FIR No. 121/09 PS - Sultan Puri offences punishable u/s 363/366/328/34 IPC. Accused Sazid is also further hold guilty for the offence punishable u/s 376 IPC and convict them thereunder.

35. In view of above discussion, I am of the considered opinion that as far as the involvement of the accused Sazid and Mustakeem in the commission of the offences u/s 363/366/328/34 IPC and that of accused Sazid also 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 Sazid and Mustakeem beyond shadows of all reasonable doubts and there is no room for hypothesis, consistent with that of innocence of accused. I, therefore, hold accused Sazid and Mustakeem guilty for the offences punishable u/s 363/366/328/34 IPC. Accused Sazid is also further hold guilty for the offence punishable u/s 376 IPC and convict them thereunder.

Announced in the open Court (MAHESH CHANDER GUPTA) on 16th Day of August, 2014 Additional Sessions Judge Special Fast Track Court 165 of 166 166 FIR No. 121/09 PS - Sultan Puri (N/W District), Rohini, Delhi 166 of 166

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State vs . 1. Sazid on 16 August, 2014