Delhi District Court
State vs . Rakesh Kumar on 18 April, 2015
1
FIR No. 78/11
PS - Shahbad Dairy
IN THE COURT OF SH. MAHESH CHANDER GUPTA :
ADDITIONAL SESSIONS JUDGE : SPECIAL FAST TRACK
COURT : NORTHWEST DISTRICT : ROHINI : DELHI
SESSIONS CASE NO. : 175/13
Unique ID No. : 02404R0153002011
State Vs. Rakesh Kumar
S/o Sh. Manoj Kumar
R/o A - 2480, Metro Vihar,
Holambi Kalan, Phase - II,
Delhi.
FIR No. : 78/11
Police Station : Shahbad Dairy
Under Sections : 363/366/376(2)(f) IPC
Date of committal to session Court : 25/06/2011
Date on which judgment reserved : 04/04/2015
Date on which judgment announced : 18/04/2015
J U D G M E N T
1 of 136 2 FIR No. 78/11 PS - Shahbad Dairy
1. Briefly stated the case of the prosecution as unfolded by the report under section 173 Cr.P.C. is as under : That on 05/03/2011 complainant Laddu Gopal S/o Shiv Kumar R/o C170, Phase I, Metro Vihar, Delhi came to the Police Post and got recorded his statement which is to the effect that, "he resides at the above address with his family and does the work of selling woods. On 05/03/2011, his daughter (name withheld) aged 11 years, who studies in 6th class in Govt. CoEd. Secondary School, A Block, Metro Vihar, Delhi and had gone for studies (Parhne Ke Liye Gai Thi) but has not returned so far. Her description is as follows. Age 11 years, height 5 ft, color Sawla, face longish, thin body, who is wearing blue color kurta and white salwar of school dress and is wearing black sandal in her feet. She has been searched till by this time, by them in their own ways, but has not been traced out. They have full suspicion that some unknown person after inducing his daughter had taken her away. His daughter be searched out. Legal action be taken. He has heard the statement and is correct." On the basis of the statement of the complainant finding that that offence u/s 363 IPC appeared to have been committed the case was got registered and the investigation was proceeded with by HC Anil 2 of 136 3 FIR No. 78/11 PS - Shahbad Dairy Kumar. During the course of investigation HC Anil Kumar made inquiries from the parents of the prosecutrix (name withheld) and the statements of the witnesses were recorded. On 06/03/2011 in the evening, complainant Laddu Gopal and his wife Baby produced their daughter (name withheld) in the Police Post Metro Vihar. HC Anil Kumar made inquiries from the prosecutrix (name withheld) and recorded her statement. The medical examination of the prosecutrix was got conducted from M. V. Hospital, Pooth Khurd vide MLC No. 850/11 dated 06/03/2011. From the statement of the prosecutrix and on the inspection of her MLC, section 376 IPC was added in the case. Further investigation of the case was handed over to SI Mahender Pratap. On 07/03/2011, on the identification of the prosecutrix, accused Rakesh Kumar was arrested and his medical examination was got conducted from M. V. Hospital vide MLC No. 857/11 and the sealed exhibits handed over after his medical examination was taken into Police possession. Statement of the prosecutrix u/s 164 Cr.P.C. was got recorded. The sealed exhibits were sent to FSL.
Upon completion of the necessary further investigation challan for the offences u/s 363/366/376(2)(f) IPC was prepared against 3 of 136 4 FIR No. 78/11 PS - Shahbad Dairy accused Rakesh Kumar and was sent to the Court for trial.
2. Since the offences u/s 366/376(2)(f) IPC are exclusively triable by the Court of Session, therefore, after compliance of the provisions of Section 207 Cr.P.C., the case was committed to the Court of Session u/s 209 Cr.P.C.
3. Upon committal of the case to the Court of Session and after hearing on charge prima facie a case u/s 363/366/376(2)(f) IPC was made out against accused Rakesh Kumar. Charge was framed accordingly which was read over and explained to the accused to which he pleaded not guilty and claimed trial.
4. In support of its case prosecution has produced and examined 16 witnesses. PW1 Ladoo Gopal, PW2 Ms. Baby, PW3 prosecutrix (name withheld), PW4 HC Gopal Singh, PW5 HC Anand Singh, PW6 Dr. Amit Shokeen, CMO, MB Hospital, Pooth Khurd, Delhi, PW7 Constable Prem Prakash, PW8 Dr. N. Masand, Medical Officer, Maharishi Valmiki Hospital, Pooth Khurd, Delhi, PW9 4 of 136 5 FIR No. 78/11 PS - Shahbad Dairy Constable Ram Kishore, PW10 Sh. R. K. Gupta, SubRegistrar, Birth & Death, Civil Lines Zone, Delhi, PW11 - Lady Constable Sharmila, PW12 HC Anil Kumar, PW13 Constable Rajender Singh, PW14 Sh. Dheeraj Mor, MM Rohini Courts, Delhi, PW15 Dr. Geetanjali Singh, Specialist O & G, Maharishi Valmiki Hospital, Pooth Khurd, Delhi and PW16 - SI Mahender Pratap,
5. In brief the witnessography of the prosecution witnesses is as under : PW1 Ladoo Gopal is the father of the prosecutrix who deposed that he used to do business of selling fuel wood at C170, Phase1, Metro Vihar, Hollambi Kalan, Delhi. Prosecutrix (name withheld), aged about 11 years is his daughter. On 05/03/2011 his daughter/prosecutrix (name withheld) had gone to attend her school i.e Govt. CoAid (Coed.) Secondary School, A Block, Metro Vihar, Delhi where she was studying in Class 6th at that time but, she did not come back to his house from School. He searched her here and there and went to School of his daughter but, he did not find any clue about her on that day, therefore, he went to PS Shahbad Dairy and told this fact to Police.
5 of 136 6 FIR No. 78/11 PS - Shahbad Dairy IO recorded his statement regarding the missing of his girl/prosecutrix (name withheld). His said statement is Ex. PW1/A which bears his signatures at Point 'A'. On 06/03/2011 some neigbourers had told his wife Baby that his daughter/prosecutrix (name withheld) is standing near Ganda Nala at C Block, Phase II, Metro Vihar & thereafter, he alongwith his wife reached there and found his daughter/prosecutrix (name withheld) standing there and she was weeping at the time. When they inquired from her about the reason of weeping and about her missing she told them that accused Rakesh, who was residing in a house of his maternal uncle situated in front of their house and she also told him that accused Rakesh (correctly identified) had kidnapped her and she also told them that accused Rakesh has committed galat kaam i.e rape upon her. Thereafter, they took their daughter/prosecutrix (name withheld) to Police Post and thereafter HC Anil Kumar made inquiry from them and his daughter/prosecutrix (name withheld). Thereafter, his daughter/prosecutrix (name withheld) was taken to MB Hospital, Pooth Khurd. They also accompanied by Lady Constable, who took prosecutrix (name withheld) to MB Hospital. His daughter/prosecutrix (name withheld) was medically examined there. IO recorded his 6 of 136 7 FIR No. 78/11 PS - Shahbad Dairy supplementary statement on 06/03/2011 at Police Post. On 07/03/2011, he joined the investigation with the IO/SI Mahender Pratap in this case. On that day, he alongwith his daughter/prosecutrix (name withheld) and his wife Baby reached at PP Metro Vihar. SI Mahender Pratap made enquiry from his daughter/prosecutrix (name withheld) and thereafter they alongwith prosecutrix (name withheld) and SI Mahender Pratap and other Police officials left the Police Post & reached at Metro Vihar, Phase II where the house of accused found locked. Thereafter, they left the house of accused and reached at Metro Vihar, Phase I and one secret informer met them there and informed about the presence of accused Rakesh to IO. Thereafter, they reached at Mother Dairy Booth, Metro Vihar, Phase II, where accused Rakesh was found present there in front of Mother Dairy Booth. His daughter/prosecutrix (name withheld) has pointed out towards accused Rakesh and on her pointing out accused Rakesh was arrested from there by SI Mahender Pratap in his presence. He was interrogated by IO, his arrest memo and personal search memo were prepared. Accused was interrogated. Thereafter, accused led them to the place of occurrence i.e. where he had committed rape upon prosecutrix (name withheld) in the jungle at Hollambi Kalan.
7 of 136 8 FIR No. 78/11 PS - Shahbad Dairy IO prepared pointing out memo in this regard. SI Mahender Pratap recorded his statement at PP Metro Vihar regarding the above mentioned facts.
PW2 Ms. Baby is the mother of the prosecutrix who deposed that on 05/03/2011 her daughter/prosecutrix (name withheld) aged about 11 years had gone to School at about 8:00 a.m. as usual but she did not return from the School. When she (prosecutrix) did not return she (PW2) alongwith her husband gone in search of prosecutrix (name withheld) and when they reached A Block School, Metro Vihar, they met the watchman of the School whose name she does not recollect, they enquired from him about the whereabouts of prosecutrix (name withheld) but he could not tell anything about her. Thereafter, she alongwith her husband searched prosecutrix (name withheld) near about the School and in Metro Vihar but she could not be found and at that time it was late hours, having no option they returned to their home and her husband gone to Police Post and lodged a report in this regard. Her daughter/prosecutrix (name withheld) had already told her that a boy in the name of Rakesh, who was residing in Metro Vihar Phase 2 in their 8 of 136 9 FIR No. 78/11 PS - Shahbad Dairy neighbourhood in her Mama's house used to tease her daughter/prosecutrix (name withheld) and used to follow her. When she was enquired by the Police, she told that she has doubt on accused Rakesh that he had enticed her daughter and kidnapped her. On 06/03/2011 at about 2:00 p.m. she was present in her house alongwith her husband, they were told by the neighbour, the name she does not recollect that her daughter/prosecutrix (name withheld) was standing near Phase 2, Behind C Block, Near Ganda Nala. On receiving this information, she alongwith her husband reached there where prosecutrix (name withheld) was found present. She alongwith her husband enquired about circumstances from her (prosecutrix), she (prosecutrix) told her that accused Rakesh had committed "Galat Kaam" with her. Thereafter, she alongwith her husband took prosecutrix (name withheld) to Police Post and produced her before the IO. At the Police Post, Police officials took her daughter to M. B. Hospital for medical examination. After the medical examination, her daughter was produced before the Court and her statement was recorded. After that her daughter was handed over to her. At the time of her (prosecutrix) medical examination, she (PW2) filled the Consent Form for medical examination of her daughter. Same 9 of 136 10 FIR No. 78/11 PS - Shahbad Dairy is Ex. PW2/A which bears her signature at point 'A'. She identified the accused present in the Court. She handed over the birth certificate of prosecutrix (name withheld) to IO.
PW3 Prosecutrix is the victim who deposed regarding the incident and proved her statement recorded u/s 164 Cr.P.C. Ex. PW14/B, arrest memo of accused Ex. PW3/B, personal search memo of accused Ex. PW3/C. She also correctly identified underwear, shamiz, salwar and shirt as Ex. P1 (colly.) and deposed regarding the investigational aspects which she joined.
PW4 HC Gopal Singh, who deposed that on 06/03/2011, he was posted in PS Shahbad Dairy as Duty Officer from 12:00 a.m. (night) to 8:00 a.m. On that day, at about 12:30 a.m. he received a rukka from Constable Rajender sent by HC Anil Kumar. On the basis of same, he recorded FIR of this case. Same is Ex. PW4/A (OSR). He also made his endorsement on the rukka which is Ex. PW4/B bearing his signatures at point 'A'.
10 of 136 11 FIR No. 78/11 PS - Shahbad Dairy PW5 HC Anand Singh, who deposed that he has brought the original Register No. 19. According to record, on 07/03/2011 SI Mahender got deposited four sealed parcels which were sealed with the seal of MB Hospital alongwith one sample seal with MHC(M) HC Ishwar Dutt who was working as MHC(M) on that day, in Register No. 19 at Serial No. 578. Copy of relevant entry is Ex. PW5/A (OSR). On 02/04/2011 while he was working as MHC(M) in PS Shahbad Dairy SI Mahender got deposited a parcel sealed with the seal of MB Hospital. He made the relevant entry in Register No. 19 at Serial No. 607. Copy of the same is Ex. PW5/B (OSR). On 21/04/2011 the exhibits of this case were got deposited in FSL Rohini through Constable Ram Kishore vide RC No. 50/21. Copy of the same is Ex. PW5/C (OSR) and acknowledgment of the same is Ex. PW5/D (OSR). So long as the exhibits remained in his custody same were not tampered in any manner.
PW6 Dr. Amit Shokeen, CMO, MB Hospital, Pooth Khurd, Delhi, who deposed that on 07/03/2011 at about 10:45 a.m. patient Rakesh Kumar S/o Manoj Kumar was brought to Hospital by Constable Prem Prakash. He examined the patient vide MLC No. 11 of 136 12 FIR No. 78/11 PS - Shahbad Dairy 857/11. Same is Ex. PW6/A bearing his signature at point 'A'. During physical examination of genital organs, nothing suggest that patient is not capable of sexual intercourse. During examination blood, scalp hair, pubic hair and nail were sealed and were handed over it to IO. About semen sample could not be collected.
PW7 Constable Prem Prakash who deposed that on 07/03/11 he was posted in PP Metro Vihar, PS Shahbad Dairy. On that day, IO SI Mahender Pratap had called him at the Police Post and he handed over to him the accused alongwith an application for his medical. He took accused to M. B. Hospital, Pooth Khurd. After medical examination, Doctor handed over to him MLC, four sealed parcels and one sample seal which he handed over to the IO in the Police Post. IO seized the same vide memo Ex. PW7/A which bears his signature at point 'A'.
PW8 Dr. N. Masand, Medical Officer, Maharishi Valmiki Hospital, Pooth Khurd, Delhi, who deposed that on 06/03/2011 at 05:01 p.m. patient/prosecutrix (name withheld) D/o Ladoo Gopal, 11 years 12 of 136 13 FIR No. 78/11 PS - Shahbad Dairy female brought to casualty for examination by Constable Sharmila with the alleged history of sexual assault. He examined the patient and after the examination he referred the patient to Gynae Department for further examination. The MLC is Ex. PW8/A and his report on the same is from point 'A' to 'A' and the same bearing his signature at point 'X'.
PW9 - Constable Ram Kishore, who deposed that on 02/04/2011 he was posted in PS Shahbad Dairy. On that day, he on the directions of the IO of this case had gone to M. B. Hospital and the concerned Doctor handed over to him one sealed parcel which he brought to the Police Station and handed it over to the IO SI Mahender Pratap who seized the same vide memo Ex. PW9/A bearing his signature at point 'A'. On 21/04/2011, he on the direction of IO collected five sealed parcels and one sample seal vide RC No. 50/21/11 and deposited the same in FSL. After depositing the same in FSL, he handed over the acknowledgment of acceptance to MHC(M). So long as the exhibits remained in his custody same were not tampered in any manner.
PW10 Sh. R. K. Gupta, SubRegistrar, Birth & Death, 13 of 136 14 FIR No. 78/11 PS - Shahbad Dairy Civil Lines Zone, Delhi, who deposed that he has brought the original record of birth certificate of prosecutrix (name withheld) D/o Laddu Gopal and Smt. Baby, who is mother of prosecutrix (name withheld). Photocopy of birth certificate issued from MCD is Ex. PW10/A and photocopy of the original record is Ex. PW10/B (OSR). Ex. PW10/A has been verified by him which bears his signature at Point 'A'.
PW11 - Lady Constable Sharmila, who deposed that on 06/03/2011, she was posted as Constable in PS Shahbad Dairy. On that day, after receiving the information, she reached in PP Metro Vihar and from there she alongwith HC Anil Kumar, prosecutrix (name withheld) and her mother reached at M. V. Hospital. Prosecutrix (name withheld) was medically examined and after medical examination Doctor handed over the MLC and thereafter, they came back to Chowki.
PW12 HC Anil Kumar is the initial Investigating Officer (IO) of the case, who deposed that on 05/03/2011, he was posted as HC in PP, Metro Vihar, PS Shahbad Dairy. On that day, complainant Ladoo Gopal came in the Chowki and gave his statement Ex. PW1/A and 14 of 136 15 FIR No. 78/11 PS - Shahbad Dairy he attested his signature at point 'A' bearing his signature at point 'B'. He prepared rukka Ex. PW12/A bearing his signature at point 'A' and handed over to Constable Rajender for getting the FIR registered. Thereafter, he alongwith complainant reached at his house in Metro Vihar Phase 1 and made inquiry regarding his daughter/prosecutrix (name withheld). Constable Rajender came at the spot and handed over to him the copy of FIR and original rukka. He asked from the complainant about the age proof of prosecutrix (name withheld) but at that time he was not able to produced the same. Thereafter, he alongwith Constable Rajender came to Chowki. On 06/03/2011 at around 4:00 p.m. complainant Ladoo Gopal his wife, alongwith their daughter/prosecutrix (name withheld) came at Chowki and they told that they had found their daughter/prosecutrix (name withheld) in the Jungle near Metro Vihar, Phase - 1. He made inquiry from prosecutrix (name withheld) and she told that on 05/03/2011 at around 8:00 a.m., Rakesh who was residing in their neighbourhood and met her on a motorcycle and took her on the pretext of have walk in the Narela Market and in the night he took her in jungle and committed rape upon her. He informed to SHO about the facts of the case. Lady Constable Sharmila called at the chowki.
15 of 136 16 FIR No. 78/11 PS - Shahbad Dairy Thereafter, he alongwith Lady Constable Sharmila, complainant Ladoo Gopal and his wife took prosecutrix (name withheld) in M. V. Hospital. Prosecutrix (name withheld) was medical examined and after medical examination he received the MLC and other documents. Thereafter, they came back to chowki further investigation was handed over to SI Mahender Pratap and he handed over to him all the investigation papers. Prosecutrix (name withheld) was handed over to her parents and they were asked to came in the chowki on the next day. On 07/03/2011, the complainant Ladoo Gopal, his wife and prosecutrix (name withheld) came in the Chowki and they discussed to SI Mahender Pratap. Thereafter, he alongwith SI Mahender Pratap, complainant Ladoo Gopal, his wife, prosecutrix (name withheld) and Constable Rajender left the chowki for the investigation of the present case. They reached at A - Block, Metro Vihar at the house of relative of the accused Rakesh in search of accused Rakesh but house was found locked. Thereafter, when they reached near mother Dairy both in Metro Vihar PhaseII and there one boy was standing. Prosecutrix (name withheld) pointed out towards that boy and told that he is Rakesh and at her instance accused Rakesh was apprehended. He was interrogated and arrested vide arrest memo 16 of 136 17 FIR No. 78/11 PS - Shahbad Dairy Ex. PW3/B and his personal search was conducted vide memo Ex. PW3/C both bearing his signature at point 'C'. Thereafter, accused Rakesh pointed out place of occurrence i.e in jungles of Holambi Kalan where he had committed rape upon of prosecutrix (name withheld) on the night of 05/06/03/2011. Thereafter, they came back at the chowki. Thereafter, he alongwith Constable Prem Prakash took accused Rakesh in M. V. Hospital, where he was medically examined. After medical examination Doctor handed over the sealed pullinda. They came back the chowki and sealed pullindas were handed over to IO SI Mahender Pratap and the same were seized vide memo Ex. PW7/A bearing his signature at point 'B'. Accused Rakesh is present in the Court.
PW13 Constable Rajender Singh, who deposed that on 05/03/2011, he was posted as Constable in PP, Metro Vihar, PS Shahbad Dairy. On that night, at about 11:00 p.m. complainant Ladoo Gopal came in the Chowki and gave his statement. IO/HC Anil prepared rukka and handed over to him for getting the FIR register. Thereafter, he got the FIR registered and he reached at Phase 1 Metro Vihar and handed over to HC Anil the copy of FIR and original rukka. Thereafter, he 17 of 136 18 FIR No. 78/11 PS - Shahbad Dairy alongwith HC Anil came to Chowki. On 07/03/2011,complainant Ladoo Gopal, his wife and prosecutrix (name withheld) came in the Chowki and they discussed to SI Mahender Pratap. Thereafter, he alongwith SI Mahender Pratap, complainant Ladoo Gopal, his wife, prosecutrix (name withheld) and HC Anil left the Chowki for the investigation of the present case. They reached at A - Block, Metro Vihar at the house of relative of the accused Rakesh in search of accused Rakesh but house was found locked. Thereafter, when they reached near Mother Dairy Booth in Metro Vihar Phase II and there one boy was standing. Prosecutrix (name withheld) pointed out towards that boy and told that he is Rakesh and at her instance accused Rakesh was apprehended. He was interrogated and arrested vide arrest memo Ex. PW3/B and his personal search was conducted vide memo Ex. PW3/C both bearing his signature at point 'D'. Thereafter, accused Rakesh pointed out place of occurrence i.e in jungles of Holambi Kalam where he had committed rape upon prosecutrix (name withheld) on the night of 0506/03/2011. Thereafter, they came back at the chowki and accused Rakesh was handed to some other Constable. He correctly identified the accused Rakesh Kumar present in the Court.
18 of 136 19 FIR No. 78/11 PS - Shahbad Dairy PW14 Sh. Dheeraj Mor, MM Rohini Courts, Delhi, who deposed that on 07/03/2011 he was posted as Metropolitan Magistrate in Rohini Courts. On that day, an application for recording the statement of prosecutrix (name withheld) D/o Laddu Gopal, Aged around 11 years was marked to him. IO SI Dhirender Pratap (be read as Mahender Pratap) has produced the prosecutrix (name withheld) and was identified by him. He recorded his statement in this regard and the proceedings are Ex. PW14/A, bearing his signature at point 'A'. He put certain preliminary question to prosecutrix (name withheld) and from the answer given by her he was satisfied that witness is able to give the rational answers and that she was making statement voluntarily. His proceedings in this regard is Ex. PW3/A, bearing his signature at point 'B'. Thereafter, he recorded statement of prosecutrix (name withheld) and the same is Ex. PW14/B, bearing his signature at point 'B'. He issued the certificate regarding the correctness of the proceedings and the same is Ex. PW14/C, bearing his signature at point 'A'. He allowed the application of the IO to take the copy of the statement vide his order Ex. PW14/D, bearing his signature at point 'A'. Ahlmad was directed to 19 of 136 20 FIR No. 78/11 PS - Shahbad Dairy send the proceedings in the sealed cover to the concerned MM.
PW15 Dr. Geetanjali Singh, Specialist O & G, Maharishi Valmiki Hospital, Pooth Khurd, Delhi, who deposed that she has been deputed in this case by the MS of the Hospital to depose on behalf of Dr. Neeraj Kumari. She has seen MLC No. 850/11 of prosecutrix (name withheld) D/o Ladoo Gopal, Aged - 11 years, Female who was brought to Hospital for medical examination on 06/03/2011. The patient was initially examined by CMO on duty and thereafter, she was referred to SR, Gynae whereupon the patient was examined by Dr. Neeraj Kumari. As per MLC, there is alleged H/o sexual assault yesterday evening by neighbour named Rakesh, according to patient, patient is unmarried, 11 years as told by mother but by appearance she is about 13 to 14 years old. According to patient she is 15 years old. Patient is conscious, cooperative, well oriented with time, place and person. Consent for (of) mother (was) taken for gynaecological examination. No fresh injury bruise, abrasion found over body. Secondary sexual characters developed. AOM one year back. LMP three days back. Breast development well no injury seen on breast. Axillary hairs present. Per 20 of 136 21 FIR No. 78/11 PS - Shahbad Dairy abdomen soft. Local examination - Pubic hair present, no fresh injury seen on private parts, hymen torned, introitus admitted tip of little finger, no external hair found all over body. The samples were taken, sealed and handed over to the concerned officer. The examination of Dr. Neeraj Kumari is at point 'X' to 'X' and is Ex. PW15/A and bearing signature of Dr. Neeraj Kumari at point 'B'.
PW16 - SI Mahender Pratap is the subsequent Investigating Officer (IO) of the case, who deposed that on 06/03/2011, he was posted at Police Post Metro Vihar, PS Shahbad Dairy as SI. On that day, the investigation of the present case was assigned to him by the order of SHO, PS Shahbad Dairy, as such he collected the case file from HC Anil (previous IO). On 07/03/2011 at about 8:00 a.m. complainant Ladoo Gopal alongwith his wife Baby and his daughter/prosecutrix (name withheld) arrived at the Police Post Metro Vihar. He made inquiry from them and collected some basic information regarding accused Rakesh. Thereafter, he alongwith Ladoo Gopal, prosecutrix (name withheld), HC Anil and Constable Rajender left the Police Post and reached at the residence of accused Rakesh situated at Metro Vihar, 21 of 136 22 FIR No. 78/11 PS - Shahbad Dairy Phase - I. The said house was found locked and on local inquiry he came to know that since the noon of 06/03/2011 Rakesh had not been seen by anybody at the said residence. They also visited the house of maternal uncle of accused Rakesh situated at Metro Vihar, Phase - II but the said house was also found locked. When they came out of Metro Vihar, Phase - II, there on the road he received a secret information from a secret informer that accused Rakesh, who was wanted in this case, was standing at Bus Stop, Near Mother Dairy Booth of Metro Vihar, Phase II, to take a bus. After receiving this information they all alongwith informer reached at Bus Stop, Near Mother Dairy Booth, Metro Vihar, Phase II and from there, accused Rakesh present in the Court (correctly identified) was apprehended on the identification of prosecutrix (name withheld). He was arrested and his personal search was conducted vide memos already respectively Ex. PW3/B & Ex. PW3/C both signed by him at Point 'X'. Thereafter, they all alongwith accused Rakesh in custody came back at Police Post Metro Vihar. He got accused Rakesh medically examined at MB Hospital through Constable Prem Prakash and his MLC was made part of record and the exhibits which were handed over by the Doctor after his medical examination to Constable 22 of 136 23 FIR No. 78/11 PS - Shahbad Dairy Prem Prakash were produced by Constable Prem Prakash before him and same were seized by him vide seizure memo already Ex. PW7/A signed by him at Point 'X'. He recorded statements of PWs. Thereafter, he alongwith accused, prosecutrix, her parents and staff reached at Rohini Courts. Accused was produced before the Court and was remanded to judicial custody on his request and he got the statement of prosecutrix (name withheld) recorded u/s 164 Cr.P.C. His statement recorded by the Learned MM Sh. Dheeraj Mor, regarding identification of prosecutrix while recording her statement u/s 164 Cr.P.C. is at Point 'B' bearing his signature at Point 'C' on Ex. PW14/A. His application for providing the copy of the statement of prosecutrix is already Ex. PW14/D signed by him at Point 'X'. He collected the copy of statement u/s 164 Cr.P.C. and same was made part of record. On 02/04/2011 on his direction, Constable Ram Kishore collected the exhibits of the prosecutrix (name withheld) from MB Hospital and he handed over the same to him which were seized by him vide seizure memo already Ex. PW9/A signed by him at Point 'X'. On 21/04/2011, he got the exhibits of the present case deposited at FSL Rohini through Constable Ram Kishore and on that day, he recorded statements of Constable Ram Kishore and MHC(M) HC 23 of 136 24 FIR No. 78/11 PS - Shahbad Dairy Anand. He collected the Birth Certificate of prosecutrix (name withheld) and got it certified from SubRegistrar, Birth & Death, Civil Lines Zone, MCD. His letter addressed to The Registrar, Birth Registration Section, MCD, Timar Pur, Delhi, dated 20/04/2011 is Ex. PW16/A signed by him at Point 'X'. Thereafter, he prepared the charge sheet and filed the same in the Court. He collected the FSL Result and filed the same in the Court by way of an application Ex. PW16/B signed by him at Point 'X'. FSL result running into two pages is now Ex. PW16/C. The testimonies of the prosecution witnesses shall be dealt with in detail during the course of appreciation of evidence.
6. Statement of accused Rakesh Kumar was recorded u/s 313 Cr.P.C. wherein he pleaded innocence and false implication. Accused initially opted to lead defence evidence but did not lead any defence evidence.
7. Learned Counsel for accused submitted that to prove the age 24 of 136 25 FIR No. 78/11 PS - Shahbad Dairy of the prosecutrix the prosecution examined PW10 Sh. R. K. Gupta who exhibited the birth certificate issued by the MCD as Ex. PW10/A and produced the original record of the registration of birth of a child named prosecutrix (name withheld), D/o Laddu Gopal and Smt. Baby, copy of which was exhibited as Ex. PW10/B. Learned Counsel further submitted that the said Ex. PW10/B shows that a child named prosecutrix (name withheld) was born on 23/07/2000 at N60/58, Durga Basti, Khaiber Pass, Delhi, whose father's name was Laddo Gopal and mother's name was Baby. The information for registering the birth of said prosecutrix (name withheld) was given by one 'Kamlesh' on 27/07/2000. Learned Counsel further submitted that the prosecution has not led any evidence to establish that the said birth certificate Ex. PW1/A and/or Ex. PW10/B was birth certificate of prosecutrix (name withheld), the prosecutrix herein. Learned Counsel further submitted that both PW1 Laddoo Gopal and PW2 Smt. Baby, the father and mother respectively of prosecutrix (name withheld), have stated in their examinationinchief that at the time of the incident their daughter, prosecutrix (name withheld), was about 11 years old, but none of them have stated in their examinationinchief either about the place of birth of the said 25 of 136 26 FIR No. 78/11 PS - Shahbad Dairy prosecutrix (name withheld) or as to when and in what circumstance the birth of prosecutrix (name withheld) was registered, much less about the identity of 'Kamlesh', who had allegedly given the information about the birth of a child named prosecutrix (name withheld). Learned Counsel further submitted that PW1 Laddoo Gopal, in his crossexamination has stated that prior to coming to Delhi he was residing in a village in Moradabad district where his first two children were born and that the name of his second child was prosecutrix (name withheld). He further stated that he was married 20/21 years ago and that while his first child was born after one year of his marriage his second child, namely prosecutrix (name withheld), was born one year after the birth of his first daughter. He also stated that he came to Delhi after about 34 years of his marriage. The said PW1 has further stated in his crossexamination that he got prepared the birth certificate of his daughter, prosecutrix (name withheld), from MCD on the basis of an affidavit in support of the date of birth of prosecutrix (name withheld) wherein he had mentioned her age on the lower side, which is contrary to the document Ex. PW1/B which shows that prosecutrix (name withheld) was born in Delhi and her birth was recorded on the basis of information given by some person 26 of 136 27 FIR No. 78/11 PS - Shahbad Dairy named Kamlesh. Learned Counsel further submitted that PW2 Smt. Baby, in her crossexamination has supported and corroborated the statement given by her husband, PW1 Laddoo Gopal in his cross examination, by stating that her marriage had been solemnized with Laddoo Gopal about 20 years ago and that she had given birth to two daughters within a period of two years of her marriage. Learned Counsel further submitted that from the evidence of PW1 and PW2 given in their respective crossexaminations the age of the prosecutrix (name withheld), at the time of alleged incident can safely be calculated as 1819 years. Learned Counsel further submitted that the prosecution, in its wisdom, has not cared to examine the said Kamlesh who was the only witness who could testify as to the identity of the person whose birth was registered on 27/07/2000 vide document Ex. PW10/B, her own identity and the source of her information, in the absence of which the said birth certificate Ex. PW10/A and/or Ex. PW10/B could not be said to be that of the prosecutrix (name withheld). Learned Counsel further submitted that moreover nonproduction and examination of Kamlesh, who was a material witness to establish that the birth certificate Ex. PW10/A & B was that of the prosecutrix (name withheld), as a 27 of 136 28 FIR No. 78/11 PS - Shahbad Dairy Prosecution Witness raises an adverse presumption against the prosecution that had the said Kamlesh been examined by the prosecution it would have demolished the claim of the prosecution that the said birth certificate pertained to the birth of the prosecutrix (name withheld). Learned Counsel further submitted that the prosecutrix (name withheld) was medically examined by Dr. Neeraj Kumari vide her Report Ex. PW15/A wherein the said Gynaecologist has noted the age of the prosecutrix (name withheld) as : 11 years (as told by mother); 15 years ( accordingly to patient); 1314 years (by appearance). Learned Counsel further submitted that the said Gynaecologist had advised XRay for bone examination/Ossification test to determine the age of the prosecutrix (name withheld) and the Court can presume that the medical staff must have taken the XRay of the prosecutrix to determine her age and the Court may also presume that the said Ossification test result/report was not produced by the prosecution because had they produced it the same would have shown that the prosecutrix (name withheld) was older than 18 years and not a minor. Learned Counsel further submitted that it is apparent that the prosecutrix (name withheld) was not less than 18 years of age on 05/03/2011. Even otherwise the 28 of 136 29 FIR No. 78/11 PS - Shahbad Dairy prosecution had failed to establish either that the age of the prosecutrix was less than 18 years or 16 years or 12 years on 05/03/2011.
Learned Counsel further submitted that the prosecutrix PW3 has stated that she went with the accused on his motorcycle in the morning of 05/03/2011 where after the accused bought a 'salwar suit' for her and they roamed for the whole day and then in the night the accused committed rape upon her in the jungle of Narela. Learned Counsel further submitted that the story of the prosecutrix on the face of it appears to be false and fabricated as it is practically impossible for a young girl to be taken around the busy town/market against her will and the girl not seeking or shouting for help; moreso she was taken to a shop where she stayed for about one hour and allegedly checked and wore a new dress but did neither try to run away or cry for help. Learned Counsel further submitted that the girl remained in the jungle the whole of the night of 5th 6th March 2011 in only the dress she was wearing, which is highly improbable. The prosecutrix PW3 has stated in her crossexamination by the accused that it was winter time at the time of incident and even the Court can take judicial notice of the fact that in the 29 of 136 30 FIR No. 78/11 PS - Shahbad Dairy late night and early morning of early March the weather in Delhi is very cold and unbearable in the open. Learned Counsel further submitted that though the prosecutrix was allegedly raped in a jungle yet there was not a single scratch on her entire body which is impossible and belies her claim. Learned Counsel further submitted that PW3 prosecutrix has stated in her deposition recorded on 04/02/2012 that on 05/03/2011 at about 8:00 a.m. the accused met her at the gate of her school on a motorcycle and asked her to accompany him for a ride where after she went with him to Narela on his motorcycle. Learned Counsel further submitted that that PW3 - prosecutrix in her examinationinchief recorded on 04/02/2012 while alleging that in the night of 0506/03/2011 the accused took her to the jungle of Narela and thereafter he committed rape on her had not uttered a single word alleging any force or inducement or deceit by the accused. Learned Counsel further submitted that PW3 prosecutrix was crossexamined by the Learned APP on 25/05/2012 wherein she admitted the suggestions put by the Learned APP that wherein the words "enticed" and "forcefully" were used; however neither of them was explained to show in what manner she was 'enticed' or 'forced' by the accused. Learned Counsel further submitted 30 of 136 31 FIR No. 78/11 PS - Shahbad Dairy that though PW3 prosecutrix in her crossexamination by the accused tried to improve her previous version by stating that she had been threatened by the accused yet her entire statement in crossexamination by accused shows that she had a number of opportunity either to call for help as she had been roaming around in public place or the flee from the alleged clutches of the accused, particularly while she was in a shop for about one hour where she claims to have changed her clothes. Learned Counsel further submitted that the prosecutrix PW3 is unreliable as her statement under Section 164 Cr.P.C. (Ex. PW3/A) as well as that recorded before the Court appears to be tutored. She gave her age in Ex. PW3/A recorded on 07/03/2011 as 11 years but before the doctor in the MLC (Ex. PW8/A) on 06/03/2011 and in her statement as PW3 recorded on 04/02/2012 she gave her age as 15 years; PW3 has stated in her statement Ex. PW3/A that after the accused had committed rape upon her he continued threatening her the whole night whereas she has not said any such thing in her deposition as PW3 except admitting the suggestion given by the Learned APP that accused had also threatened her in the night; The prosecutrix PW3 had stated in her statement Ex. PW3/A that the accused had met her on a motorcycle and told her that he 31 of 136 32 FIR No. 78/11 PS - Shahbad Dairy would take her to Bihar but had lured and taken her to Narela but in her statement as PW3 she has given a completely different version by stating that on 05/03/2011 the accused met him on his motorcycle at the gate of her school where he talked to her and asked her to accompany him for a ride; In her statement under Section 164 Cr.P.C. (Ex. PW3/A) the prosecutrix PW3 has stated that on 06/03/2011 the accused left her near 'Ganda Nala' of Metro Vihar, Phase 3 at about 3:00 a.m. but in her statement as PW3 recorded on 04/02/2012 she has stated that on 06/03/2011 in the afternoon when she and the accused were coming out of the jungle the Police caught them and thereafter they were brought to the Police Post and then sent with her parents; However in her statement recorded on 25/05/2012 the said PW3 gave a different version by stating that on 06/03/2011 the accused left her at 'Ganda Nala' of Metro Vihar, Phase - 2 where she requested one passerby to tell about her presence at 'Ganda Nala' to her parents where after her parents came there to whom she disclosed all the facts and they took her to Police Station and the said PW3 in her crossexamination by the accused on 25/05/2012 has stated :
"It is correct that IO had told me about my statement."
32 of 136 33 FIR No. 78/11 PS - Shahbad Dairy Learned Counsel further submitted that the prosecutrix was medically examined immediately after her alleged rape and recovery on 06/03/2011 vide Report Ex. 15/A by which time she had only voided urine and not taken bath, yet the said report shows that there was neither any blood or seminal or other stain on her body nor was there any foreign material on her body and even her pubic hair was not found to be matted. On the basis of the said Report PW15 has stated : ".......... No fresh injury, bruise, abrasion found over her body. Secondary characters developed. AOM one year back. LMP three days back. Breast developed well, no injury seen on breast. Auxiliary hairs present. Per Abdomen soft. Local examination Pubic hair present, no fresh injury seen on private parts, hymen torned, introitus admitted tip of little finger, no external hair found all over body .........". Learned Counsel further submitted that the MLC of accused (Ex. PW6/A) shows that no fresh external injury was found on the accused. Learned Counsel further submitted that the claim by PW3 that she had been raped by the accused is falsified by the medical evidence as given in the report of the Gynaecologist, Ex. PW15/A and the statement of PW15, Dr. Geetanjali Singh given on the basis of the said report. Learned Counsel further 33 of 136 34 FIR No. 78/11 PS - Shahbad Dairy submitted that the prosecutrix is said to have been raped by the accused in a jungle yet there is not even a scratch or bruise either on the body of the said prosecutrix or the accused and even though she had not taken bath after the alleged incident the doctor did neither find any blood stain or foreign material or any seminal or other stain on the body of the prosecutrix nor did the doctor find any injury on the private parts of the prosecutrix. Learned Counsel further submitted that even the FSL Report (Ex. PW16/C) does not establish any connection between the accused and the prosecutrix PW3.
Learned Counsel further submitted that PW12 HC Anil Kumar who was initially the IO in the FIR of the present case has stated in his crossexamination by the accused that 'I had asked Laddo Gopal, father of the prosecutrix, of coming to the Police Chowki at about 04:00 p.m. on 06/03/2011 on which he told that firstly they had gone to the house and after having discussion with his wife they had come to the Police Chowki. Learned Counsel further submitted that while PW3 has stated in her statement Ex. PW3/A that the accused left her near Ganda Nala of Metro Vihar, PhaseIII at about 3 am but in her examinationin 34 of 136 35 FIR No. 78/11 PS - Shahbad Dairy chief on 04/02/2011 that Police caught her and the accused in the after noon when they were coming out of the jungle. Her mother PW2 has stated that she learnt from some neighbour about her daughter being present near Ganda Nala of Metro Vihar, Phase II at about 2 pm where after she reached there with her husband and took the prosecutrix to the Police Post. Learned Counsel further submitted that the said PW3 in her crossexamination by the accused had stated that the accused left her near Ganda Nala at about 4 am and that her father came and met her at about 8:00 a.m. Learned Counsel further submitted that PW12 stated that on 06/03/2011 the parents of prosecutrix brought her to the Police Post at about 4 pm and told him that they had found the prosecutrix in the jungle near Metro Vihar, Phase I and told him that they had taken the prosecutrix after recovery to their home and had come to the Police Post after discussing the matter, which not only demolishes the entire case of the prosecution but also shows that the allegations against the accused had been cooked up by the father and mother of the prosecutrix. Learned Counsel further submitted that PW1 and PW2 have claimed that some neighbour informed them about the presence of prosecutrix near Ganda Nala which is reiterated by PW3 in her examination on 35 of 136 36 FIR No. 78/11 PS - Shahbad Dairy 25/05/2012 wherein she stated in chief that she requested to a passerby to inform her parents about her presence where after her parents came at about 8 am. The prosecution has not examined the person who appears to have known the said PWs and had allegedly informed PW2 about PW3 as there was no such person and the story of the PWs was false and fabricated. Learned Counsel further submitted that while PW12 and PW13 have stated in their crossexamination that the accused was arrested at the Mother Dairy Booth in Metro Vihar, Phase II at 09:30 a.m., the IO, PW16 has stated that the accused was arrested at the bus stop near Mother Dairy Booth at 9:00 a.m., but the arrest memo Ex. PW3/B shows that the accused was arrested at 04:00 p.m. at mother dairy. Learned Counsel further submitted that PW1 has stated that after his arrest the accused led them to the place of occurrence where the IO prepared 'pointing out memo'. PW2 does not say anything about the same. Both PW12 and PW13 who claim to be present when the accused was allegedly arrested, have stated that after arrest accused pointed out the place of occurrence but neither has stated in their examinationin chief about preparation of pointing out memo. But in their respective crossexamination by the accused both the said witnesses have stated that 36 of 136 37 FIR No. 78/11 PS - Shahbad Dairy the IO prepared 'pointing out memo'. Learned Counsel further submitted that neither does the IO of the case, PW16 say anything about preparation of 'pointing out memo' rather he states that after the arrest of accused and preparation of arrest memo and personal search memo the accused was brought to the Police Post nor is there any pointing out memo or site plan on record to show where the alleged rape was committed and as such the prosecution has failed to show that rape was committed at the place and in the manner as alleged. Learned Counsel further submitted that PW12 has stated in his crossexamination by the accused that with the Police team PW1 Laddoo Gopal and PW13 (be read as PW3 - prosecutrix), went to the place of occurrence with the accused but PW13 has stated in his crossexamination by the accused that no one else accompanied the Police team and the accused to the place of occurrence. Though PW3 claims to have worn the newly purchased suit over her school uniform yet the school uniform was not seized. Learned Counsel further submitted that the claim of the PW3 that she did not try to run away or raise any alarm as she was under
threat is unbelievable in the facts and circumstances as stated by the said PW3 in her deposition and moreso as neither has she or any other
37 of 136 38 FIR No. 78/11 PS - Shahbad Dairy witness deposed that the accused was a bad character having any criminal background nor has any such circumstance been shown due to which she could reasonably and genuinely believe in the threat allegedly given by the accused. Learned Counsel for the accused referred to the cases and are reported as 'Vishnu Sahai @ T. K. Chandra Shekhra vs. State of Maharashtra' 1998 (4) Crimes 69, 'Suresh Babu vs. State of Kerala' 2001 (2) Crimes 88, 'State of Chhatisgarh vs. Dipak Kumar' 2013(1) Crimes 367, 'Birad Mal Singhvi vs. Anand Purohit' AIR 1988 SC 1796, 'Tameezuddin vs. State (NCT of Delhi)' 2009, 15 SCC 566, 'Alamelu vs. State' (2011) 2 SCC 385, 'Rai Sandeep vs. State (NCT of Delhi)' 2012 , 8 SCC 21, 'Ram Niwas vs. State' in Crl. A. No. 636/1999 decided on 22/08/2014 (DHC). Learned Counsel prayed for the acquittal of the accused on all the charges levelled against him.
8. While the Learned Addl. PP for the State, on the other hand, submitted that the testimonies of the prosecution witnesses are cogent 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 38 of 136 39 FIR No. 78/11 PS - Shahbad Dairy doubt.
9. I have heard Ms. Nimmi Sisodia, Learned Addl. PP for the State and Sh. Ravi Verma, Learned Counsel for the accused and have also carefully perused the entire record.
10. The charge for the offences punishable u/s 363/366/376(2)
(f) IPC against the accused Rakesh Kumar is that on 05/03/2011, between 8:00 a.m. to 11:00 a.m., he kidnapped prosecutrix (name withheld) D/o Laddu Gopal, a minor girl, aged about 11 years from near Govt. CoEd. Secondary School, Metro Vihar, Delhi, within the jurisdiction of PS - Shahbad Dairy, from her legal guardianship without their consent and that on the abovesaid date, time and place he after kidnapping prosecutrix (name withheld) induced her with intent that she may be compelled to marry with him/accused Rakesh Kumar and she will be seduced to intercourse by him and that after kidnapping prosecutrix (name withheld), he took her towards of (the) Jungle of Holambi Kalan and committed rape (sexual intercourse) upon her forcibly and without her consent and against her wishes.
39 of 136 40 FIR No. 78/11 PS - Shahbad Dairy
11. It is to be mentioned that as a matter of prudence, in order to avoid any little alteration in the spirit and essence of the depositions of the material witnesses, during the process of appreciation of evidence at some places their part of depositions have been reproduced, in the interest of justice.
AGE OF THE PROSECUTRIX
12. PW1 - Ladoo Gopal, father of the prosecutrix in his examinationinchief recorded on 17/09/2011 has deposed that his daughter/prosecutrix (name withheld) was aged about 11 years.
During his crossexamination, he has deposed that after 34 years of his marriage he shifted to Delhi alongwith his family. He had got prepared birth certificate of prosecutrix (name withheld) from MCD. He had given an affidavit in support of her date of birth in MCD mentioning her age on the lower side. He had mentioned her age 3 years less than her original age so that she can get admission in the School. It is incorrect to suggest that he had reduced the age of his daughter for about 5 years. It is incorrect to suggest that his daughter was in love with 40 of 136 41 FIR No. 78/11 PS - Shahbad Dairy the accused or that she had gone with him of her own free will or that no rape was committed by the accused.
There is nothing in crossexamination of PW1 - Ladoo Gopal so as to impeach his creditworthiness.
PW2 - Ms. Baby, mother of the prosecutrix in his examinationinchief recorded on 12/01/2011 has deposed that on 05/03/2011 her daughter/prosecutrix (name withheld) was aged about 11 years.
There is nothing in the crossexamination of PW2 - Baby so as to impeach her creditworthiness.
PW10 Sh. R. K. Gupta, SubRegistrar, Birth & Death, Civil Lines Zone, Delhi has deposed that he has brought the original record of birth certificate of prosecutrix (name withheld) D/o Laddu Gopal and Smt. Baby, who is mother of prosecutrix (name withheld). Photocopy of birth certificate issued from MCD is Ex. PW10/A and photocopy of the original record is Ex. PW10/B (OSR). Ex. PW10/A has been verified by him which bears his signature at Point 'A'.
41 of 136 42 FIR No. 78/11 PS - Shahbad Dairy Despite grant of opportunity, PW10 - R. K. Gupta was not crossexamined on behalf of the accused.
On perusal of the photocopy of the birth certificate of the prosecutrix issued by MCD Ex. PW10/A and the photocopy of the original record Ex. PW10/B, it is found that the date of birth of the prosecutrix has been mentioned as 23/07/2000.
On a conjoint reading of the testimony of PW10 - Dr. R. K. Gupta and the crossexamination of PW1 - Ladoo Gopal, father of the prosecutrix, as reproduced hereinabove, wherein, he has deposed that he had given an affidavit in support of her date of birth in MCD mentioning her age on the lower side and he had mentioned her age 03 years less than her original age so that he can get admission in a School. As the date of the alleged incident is 05/03/2011 and date of birth of the prosecutrix vide Ex. PW10/A and Ex. PW10/B is 23/07/2000, on simple arithmetical calculation, the age of the prosecutrix comes to 10 years 07 months and 12 days as on the date of alleged incident on 05/03/2011.
42 of 136 43 FIR No. 78/11 PS - Shahbad Dairy Reading the said age of the prosecutrix i.e. 10 years 07 months and 12 days, in conjunction with the part of the cross examination of PW1 - Ladoo Gopal, as reproduced hereinabove, that he had given an affidavit in support of her date of birth in MCD mentioning her age on the lower side and he had mentioned her age 03 years less than her original age so that he can get admission in a School, on simple arithmetical calculation, the age of the prosecutrix comes to 13 years 07 months and 12 days.
No evidence to the contrary, on the aspect of the age of the prosecutrix, has been produced or proved on the record on behalf of the accused Rakesh Kumar.
In the circumstances, it stands proved on record that PW3 - prosecutrix was aged 13 years 07 months and 12 days as on the date of incident on 05/03/2011.
43 of 136 44 FIR No. 78/11 PS - Shahbad Dairy MEDICAL EVIDENCE OF THE PROSECUTRIX
13. PW8 Dr. N. Masand, Medical Officer, Maharishi Valmiki Hospital, Pooth Khurd, Delhi has deposed that on 06/03/2011 at 05:01 p.m. patient/prosecutrix (name withheld) D/o Ladoo Gopal, 11 years female brought to casualty for examination by Constable Sharmila with the alleged history of sexual assault. He examined the patient and after the examination he referred the patient to Gynae Department for further examination. The MLC is Ex. PW8/A and his report on the same is from point 'A' to 'A' and the same bearing his signature at point 'X'.
Despite grant of opportunity, PW8 Dr. N. Masand was not crossexamined on behalf of the accused.
PW15 Dr. Geetanjali Singh, Specialist O & G, Maharishi Valmiki Hospital, Pooth Khurd, Delhi, who deposed that she has been deputed in this case by the MS of the Hospital to depose on behalf of Dr. Neeraj Kumari. She has seen MLC No. 850/11 of prosecutrix (name withheld) D/o Ladoo Gopal, Aged - 11 years, Female who was brought to Hospital for medical examination on 06/03/2011. The patient was initially examined by CMO on duty and thereafter, she was referred to 44 of 136 45 FIR No. 78/11 PS - Shahbad Dairy SR, Gynae whereupon the patient was examined by Dr. Neeraj Kumari. As per MLC, there is alleged H/o sexual assault yesterday evening by neighbour named Rakesh, according to patient, patient is unmarried, 11 years as told by mother but by appearance she is about 13 to 14 years old. According to patient she is 15 years old. Patient is conscious, cooperative, well oriented with time, place and person. Consent for (of) mother (was) taken for gynaecological examination. No fresh injury bruise, abrasion found over body. Secondary sexual characters developed. AOM one year back. LMP three days back. Breast development well no injury seen on breast. Axillary hairs present. Per abdomen soft. Local examination - Pubic hair present, no fresh injury seen on private parts, hymen torned, introitus admitted tip of little finger, no external hair found all over body. The samples were taken, sealed and handed over to the concerned officer. The examination of Dr. Neeraj Kumari is at point 'X' to 'X' and is Ex. PW15/A and bearing signature of Dr. Neeraj Kumari at point 'B'.
During her crossexamination, PW15 Dr. Geetanjali Singh has deposed that, "Dr. Neeraj Kumari has also advised XRay for bone examination. It is wrong to suggest that I am deposing falsely".
45 of 136 46 FIR No. 78/11 PS - Shahbad Dairy There is nothing in the crossexamination of PW15 Dr. Geetanjali Singh so as to impeach her creditworthiness.
In view of above and in the circumstances, the medical and gynaecological examination vide MLC Ex. PW8/A and from point 'X' to 'X' Ex. PW15/A on the MLC Ex. PW8/A of PW3 - prosecutrix stands proved on the record.
VIRILITY OF THE ACCUSED RAKESH KUMAR
14. PW6 Dr. Amit Shokeen, CMO, MB Hospital, Pooth Khurd, Delhi has deposed that on 07/03/2011 at about 10:45 a.m. patient Rakesh Kumar S/o Manoj Kumar was brought to Hospital by Constable Prem Prakash. He examined the patient vide MLC No. 857/11. Same is Ex. PW6/A bearing his signature at point 'A'. During physical examination of genital organs, nothing suggest that patient is not capable of sexual intercourse. During examination blood, scalp hair, pubic hair and nail were sealed and were handed over it to IO. About semen sample could not be collected.
Despite grant of opportunity, PW6 Dr. Amit Shokeen was 46 of 136 47 FIR No. 78/11 PS - Shahbad Dairy not crossexamined on behalf of the accused.
In view of above and in the circumstances, it stands proved on the record that accused Rakesh Kumar was capable of performing sexual intercourse.
BIOLOGICAL AND SEROLOGICAL EVIDENCE
15. PW16 - SI Mahender Pratap in his examinationinchief, tendered in evidence the FSL Result, running into two pages, Ex. PW16/C. As per biological report Ex. PW16/C 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 "MS MB HOSPITAL POOTH KHURD" containing exhibit '1'. Exhibit '1' : Gauze cloth piece having brown stains described as 'Blood sample'.
Parcel '2' : One sealed cloth parcel sealed with the seal of "MS MB HOSPITAL POOTH KHURD" containing exhibit '2'.
47 of 136 48 FIR No. 78/11 PS - Shahbad Dairy Exhibit '2' : A bunch of hair described as 'Scalp hair' kept in a vial.
Parcel '3' : One sealed cloth parcel sealed with the seal of "MS MB HOSPITAL POOTH KHURD" containing exhibit '3'. Exhibit '3' : Few clippings of hair described as 'Pubic hair' kept in a vial.
Parcel '4' : One sealed cloth parcel sealed with the seal of "MS MB HOSPITAL POOTH KHURD" containing exhibit '4'. Exhibit '4' : Few clippings of nail described as 'Nail clippings'.
Parcel '6' : One sealed envelope sealed with the seal of "MS MB HOSPITAL POOTH KHURD" containing exhibits '6a', '6b', '6c', '6d', '6e', '6f', '6g', '6h', '6i', '6j' and '6k' kept in a cloth and plastic envelope sealed with the seal of "MS MB HOSPITAL POOTH KHURD".
Exhibit '6a1' : One underwear having dirty stains. Hair could not be detected on exhibit '6a1' i.e. underwear. Exhibit '6a2' : One shameez. Hair could not be detected on exhibit '6a2' i.e. shameez.
Exhibit '6b' : Few strands of hair described as 'Scalp hair' kept in a vial.
Exhibit '6c' : Few nail clippings described as 'Nail cuttings' 48 of 136 49 FIR No. 78/11 PS - Shahbad Dairy wrapped in a small paper and kept in a vial.
Exhibit '6d' : Dark brown foul smelling liquid kept in a vial described as 'Blood'.
Exhibit '6e' : Dark brown foul smelling liquid kept in a tube described as 'Blood'.
Exhibit '6f' : Few strands of hair described as 'Pubic hair' kept in a vial.
Exhibit '6g' : Wet dirty cotton wool swab on a stick described as 'Vaginal swab' kept in a vial.
Exhibit '6h1' : Two microslides having faint whitish smear & '6h2' described as 'Vaginal smear'. Exhibit '6i1' : Two microslides having faint whitish smear & '6i2' described as 'Vaginal smear'. Exhibit '6j' : One plastic stick containing a paper strip. Exhibit '6k1' : One dirty salwar described as undergarment.
Hair could not be detected on exhibit '6k1' i.e. salwar.
Exhibit '6k2' : One lady's shirt having few dirty stains, described as undergarment. Hair could not be detected on exhibit '6k2' i.e. lady's shirt.
Exhibit '6k3' : One lady's shirt having few dirty stains, described as undergarment. Hair could not be detected on exhibit '6k3' i.e. lady's shirt.
RESULT OF ANALYSIS
1. Blood was detected on exhibits '1', '6d' and '6e'.
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2. Blood could not be detected on exhibits '6a1', '6a2', '6b', '6c', '6g', '6f', '6j', '6k1', '6k2' and '6k3'.
3. Human semen was detected on exhibits '6a1', '6g', '6h1', '6h2', '6i1', '6i2', '6k1', '6k2' and '6k3'.
4. Semen could not be detected on exhibits '2', '3', '4', '6a2', '6b', '6c', '6f' and '6j'.
5. Skin could not be detected on exhibit '4' i.e. Nail clippings.
6. Since samples of hair in exhibits '2', '3' and '6' were taken by Doctor, hence query No. '2' is irrelevant for opinion.
7. Report of serological analysis in original is attached herewith. NOTE : Remnants of the exhibits have been sealed with the seal of 'MU FSL DELHI'.
The serological report Ex. PW16/C reads as under: Exhibits Species of origin ABO Grouping/Remarks Blood stains : '1' Gauze cloth piece Human No reaction '6d' Blood sample Sample blood putrefied hence no opinion '6e' Blood sample Sample blood putrefied hence no opinion Semen stains: '6a1' Underwear No reaction '6g' Cotton wool swab No reaction '6k1' Salwar No reaction '6k2' Lady's shirt Inconclusive 50 of 136 51 FIR No. 78/11 PS - Shahbad Dairy '6k3' Lady's shirt Inconclusive As per the biological report Ex. PW16/C, with regard to the description of the articles contained in the parcels, it is noticed that Parcel No. 1, Parcel No. 2, Parcel No. 3 and Parcel No. 4 belong to accused Rakesh Kumar which were seized vide seizure memo Ex. PW7/A, dated 07/03/2011 and Parcel No. 6 belongs to the prosecutrix which was seized vide seizure memo Ex. PW9/A dated 02/04/2011.
On careful perusal and analysis of the biological evidence on record, it clearly shows that blood was detected on exhibit '1' (Blood sample of the accused), '6d' (Blood of the prosecutrix) and '6e' (Blood of the prosecutrix); blood could not be detected on exhibit '6a1' (Underwear of the prosecutrix), exhibit '6a2' (Shameez of the prosecutrix), exhibit '6b' (Scalp hair of the prosecutrix), exhibit '6c' (Nail cuttings of the prosecutrix), exhibit '6g' (Vaginal swab of the prosecutrix), exhibit '6f' (Pubic hair of the prosecutrix), exhibit '6j' (One plastic stick containing a paper strip of the prosecutrix), exhibit 51 of 136 52 FIR No. 78/11 PS - Shahbad Dairy '6k1' (Salwar of the prosecutrix), exhibit '6k2' (Lady's shirt of the prosecutrix) and exhibit '6k3' (Lady's shirt of the prosecutrix); Human semen was detected on exhibit '6a1' (Underwear of the prosecutrix), exhibit '6g' (Vaginal swab of the prosecutrix), exhibit '6h1' (Vaginal smear of the prosecutrix), exhibit '6h2' (Vaginal smear of the prosecutrix), exhibit '6i1' (Vaginal smear of the prosecutrix), exhibit '6i2' (Vaginal smear of the prosecutrix), exhibit '6k1' (Salwar of the prosecutrix), exhibit '6k2' (Lady's shirt of the prosecutrix) and exhibit '6k3' (Lady's shirt of the prosecutrix), semen could not be detected on exhibit '2' (Scalp hair of the accused), exhibit '3' (Pubic hair of the accused), exhibit '4' (Nail clippings of the accused), exhibit '6a2' (Shameez of the prosecutrix), exhibit '6b' (Scalp hair of the prosecutrix), exhibit '6c' (Nail cuttings of the prosecutrix), exhibit '6f' (Pubic hair of the prosecutrix) and exhibit '6j' (One plastic stick containing a paper strip of the prosecutrix) and skin could not be detected on exhibit '4' (Nail clippings of the accused). As per the serological report Ex. PW16/C 'Sample was putrefied hence no opinion' could be given on the exhibit '6d' (Blood Sample of prosecutrix) and 52 of 136 53 FIR No. 78/11 PS - Shahbad Dairy exhibit '6e' (Blood Sample of prosecutrix).
As per the biological report Ex. PW16/C, prosecution has discharged its initial burden of proving the presence of Human semen on exhibit '6a1' (Underwear of the prosecutrix seized vide seizure memo Ex. PW9/A dated 02/04/2011), exhibit '6g' (Vaginal swab of the prosecutrix seized vide seizure memo Ex. PW9/A dated 02/04/2011), exhibit '6h1' (Vaginal smear of the prosecutrix seized vide seizure memo Ex. PW9/A dated 02/04/2011), exhibit '6h2' (Vaginal smear of the prosecutrix seized vide seizure memo Ex. PW9/A dated 02/04/2011), exhibit '6i1' (Vaginal smear of the prosecutrix seized vide seizure memo Ex. PW9/A dated 02/04/2011), exhibit '6i2' (Vaginal smear of the prosecutrix seized vide seizure memo Ex. PW9/A dated 02/04/2011), exhibit '6k1' (Salwar of the prosecutrix seized vide seizure memo Ex. PW9/A dated 02/04/2011), exhibit '6k2' (Lady's shirt of the prosecutrix seized vide seizure memo Ex. PW9/A dated 02/04/2011) and exhibit '6k3' (Lady's shirt of the prosecutrix seized vide seizure memo Ex. PW9/A dated 02/04/2011).
53 of 136 54 FIR No. 78/11 PS - Shahbad Dairy Accused was under an obligation to explain how and under what circumstances, the Human semen came to be present on the said exhibits '6a1', '6g', '6h1', '6h2', '6i1', '6i2', '6k1', '6k2' and '6k3' as detailed hereinabove. The absence of such an explanation both in the section 313 Cr.P.C. statement of the accused Rakesh Kumar and his omission to lead any evidence in this regard and his complete denial becomes an additional link in the prosecution case.
16. Now let the testimony of PW3 Prosecutrix be perused and analysed.
PW3 Prosecutrix, in her examinationinchief has deposed which is reproduced and reads as under : "On 05/03/2011, I was studying in 6th Class in a Government School at C1, Metro Vihar. Accused Rakesh present in the Court today was residing in front of our house. I used to see him when he used to roam in the street. When I left my house at about 8:00 a.m. as usual to go to my School, accused present in the Court today met me at the gate of my School on the motorcycle and accused talked to me and he asked me to accompany him for a ride. Thereafter, I alongwith accused went to Narela on his motorcycle and then he took me in the jungle of Narela and 54 of 136 55 FIR No. 78/11 PS - Shahbad Dairy thereafter, he committed rape on me. We remained in the jungle during the intervening night of 0506/03/2011. On the next day i.e on 06/03/2011 in the afternoon when we were coming out of the jungle, Police caught us. Thereafter, we were brought to the Police Post. Thereafter, I was sent home alongwith my parents."
During her further examinationinchief recorded on 25/05/2012, she deposed which is reproduced and reads as under : "On 06/03/2011 accused left me at Metro Vihar, Phase2, Ganda Nala. I told the facts to one passerby and requested him to tell about my presence at Ganda Nala to my parents. Thereafter, my parents came there and I disclosed all the facts to my parents and they took me to Police Station and from where I was taken to the Hospital for medical examination. Thereafter, my statement was recorded by the Magistrate.
At this stage, an envelope sealed with the seal of 'DM' which is on the judicial file, opened and statement u/s 164 Cr.P.C. is taken out. On seeing the same witness stated that it is her statement which was recorded by the Magistrate and bears her signatures at Point 'A'. Thereafter, I was sent to home with my parents.
On 07/03/2011 I alongwith my parents joined the investigation and Police officials went in search of accused Rakesh but accused could not be found available at his house. During search when we reached near bus stop of Metro Vihar, accused was seen coming from railway crossing. I pointed out towards accused and he was caught by the Police and he was arrested vide memo Ex. PW3/B and his personal search was carried out vide memo Ex. PW3/C. Both bearing my signatures at Point 'A'. Thereafter, accused led the Police party to the place of occurrence and pointed out the place of incident and thereafter 55 of 136 56 FIR No. 78/11 PS - Shahbad Dairy he was taken to the Police Station. Thereafter, I alongwith my parents came back to our home.
When I was taken to Hospital for medical examination, the Doctor who examined me took my cloths i.e salwar, suit and undergarments."
From the aforesaid narration of PW3 - prosecutrix, it is clear that on 05/03/2011, she was studying in 6th Class in a Government School at C1, Metro Vihar. Accused Rakesh present in the Court was residing in front of their house. She used to see him when he used to roam in the street. When she left her house at about 8:00 a.m. as usual to go to her School, accused present in the Court met her at the gate of her School on the motorcycle and accused talked to her and he asked her to accompany him for a ride. Thereafter, she alongwith accused went to Narela on his motorcycle and then he took her in the jungle of Narela and thereafter, he committed rape on her. They remained in the jungle during the intervening night of 0506/03/2011. On the next day i.e on 06/03/2011 in the afternoon when they were coming out of the jungle, Police caught them. Thereafter, they were brought to the Police Post. Thereafter, she was sent home alongwith her parents. On 06/03/2011 accused left her at Metro Vihar, Phase2, Ganda Nala. She told the facts 56 of 136 57 FIR No. 78/11 PS - Shahbad Dairy to one passerby and requested him to tell about her presence at Ganda Nala to her parents. Thereafter, her parents came there and she disclosed all the facts to her parents and they took her to Police Station and from where she was taken to the Hospital for medical examination. Thereafter, her statement was recorded by the Magistrate. She correctly identified her statement u/s 164 Cr.P.C. bearing her signatures at Point 'A'. Thereafter, she was sent to home with her parents. On 07/03/2011 she alongwith her parents joined the investigation and Police officials went in search of accused Rakesh but accused could not be found available at his house. During search when they reached near bus stop of Metro Vihar, accused was seen coming from railway crossing. She pointed out towards accused and he was caught by the Police and he was arrested vide memo Ex. PW3/B and his personal search was carried out vide memo Ex. PW3/C. Both bearing her signatures at Point 'A'. Thereafter, accused led the Police party to the place of occurrence and pointed out the place of incident and thereafter he was taken to the Police Station. Thereafter, she alongwith her parents came back to their home. When she was taken to Hospital for medical examination, the Doctor who examined her took her cloths i.e salwar, suit and undergarments.
57 of 136 58 FIR No. 78/11 PS - Shahbad Dairy PW3 - prosecutrix was crossexamined by the Learned Addl. PP for the State which is reproduced and reads as under : "It is correct that I had stated in my statement before the Magistrate that accused told me that he will take me to Bihar and thereafter, he enticed and took me to Narela and got purchased shirt and salwar for me and till night he forcefully roamed her in the jungle.
It was also correct that accused put off my cloths in the night in the jungle of Holambi Kalan and also extended threats on that night.
I can identify my clothes if shown to me.
At this stage, MHC(M) has produced a parcel sealed with the seal of FSL. Seal broken and contents of parcel taken out i.e. underwear, shamiz, salwar and shirt and shown to the witness which the witness correctly identified as Ex. P1 (colly.)"
PW3 - Prosecutrix during her crossexamination by the Learned Counsel for the accused has negated the suggestions that when she alongwith Rakesh was coming out of the Jungle, Police caught them or that it was early morning and shop was not open or that the shops open after 10 O'clock or that no uncle met her or that she is deposing falsely or that nothing happened with her or that there were many public persons or that she was aged 17 years at the time of incident or that she had gone with the accused voluntarily and had returned to her home on
58 of 136 59 FIR No. 78/11 PS - Shahbad Dairy the same evening or that at the instance of her father she had made false allegations against accused about having raped her as her father has ill will against Mama of accused or that statements given to the Police or the Magistrate or before this Court were tutored.
Inspite of incisive crossexamination of PW3 - prosecutrix nothing material has been brought out on the record so as to impeach her creditworthiness. In the witness box she has withstood the test of cross examination and her testimony is consistent throughout. The testimony of PW3 - Prosecutrix on careful perusal and analysis is found to be clear, natural, cogent, convincing, trustworthy and inspiring confidence. The version of this witness on the core spectrum of the crime has remained intact. There is nothing in her statement to suggest that she had any animus against the accused to falsely implicate him in the case.
The testimony of PW3 - 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 PW3 - Prosecutrix is also found to be in consonance with her statement recorded u/s 164 Cr.P.C. Ex. PW14/B 59 of 136 60 FIR No. 78/11 PS - Shahbad Dairy bearing her signature at point 'A'.
The testimony of PW3 - Prosecutrix is also found to be corroborated by PW1 - Ladoo Gopal, her father and PW2 - Ms. Baby, her mother, to whom prosecutrix disclosed the facts relating to the crime shortly after the incident at the first available opportunity being relevant u/s 6 & 8 of the Indian Evidence Act, 1872.
PW1 - Ladoo Gopal in his examinationinchief has deposed that : "I used to do business of selling fuel wood at C170, Phase1, Metro Vihar, Hollambi Kalan, Delhi. Prosecutrix (name withheld), aged about 11 years is my daughter. On 05/03/2011 my daughter/prosecutrix (name withheld) had gone to attend her school i.e Govt. CoAid (Coed.) Secondary School, A Block, Metro Vihar, Delhi where she was studying in Class 6th at that time but, she did not come back to my house from School. I searched her here and there and went to School of my daughter but, I did not find any clue about her on that day, therefore, I went to PS Shahbad Dairy and told this fact to Police. IO recorded my statement regarding the missing of my girl/prosecutrix (name withheld). My said statement is Ex. PW1/A which bears my signatures at Point 'A'.
On 06/03/2011 some neigbourers had told my wife Baby that my daughter/prosecutrix (name withheld) is standing near ganda nala at C Block, Phase II, Metro Vihar & thereafter, I alongwith my 60 of 136 61 FIR No. 78/11 PS - Shahbad Dairy wife reached there and found my daughter/prosecutrix (name withheld) standing there and she was weeping at the time. When we inquired from her about the reason of weeping and about her missing she told us that accused Rakesh, who was residing in a house of his maternal uncle situated in front of our house and she also told me that accused Rakesh (present in the Court today and witness has correctly identified him) had kidnapped her and she also told us that accused Rakesh has committed galat kaam i.e rape upon her. Thereafter, we took our daughter/prosecutrix (name withheld) to Police Post and thereafter HC Anil Kumar made inquiry from us and my daughter/prosecutrix (name withheld). Thereafter, my daughter/prosecutrix (name withheld) was taken to MB Hospital, Poothkhurd. We also accompanied by Lady Constable, who took prosecutrix (name withheld) to MB Hospital. My daughter/prosecutrix (name withheld) was medically examined there. IO recorded my supplementary statement on 06/03/2011 at Police Post.
On 07/03/2011, I joined the investigation with the IO/SI Mahender Pratap in this case. On that day, I alongwith my daughter/prosecutrix (name withheld) and my wife Baby reached at PP Metro Vihar. SI Mahender Pratap made enquiry from my daughter/prosecutrix (name withheld) and thereafter we alongwith prosecutrix (name withheld) and SI Mahender Pratap and other Police officials left the Police Post & reached at Metro Vihar, Phase II where the house of accused found locked. Thereafter, we left the house of accused and reached at Metro Vihar, Phase I and one secret informer met us there and informed about the presence of accused Rakesh to IO. Thereafter, we reached at Mother Dairy Booth, Metro Vihar, Phase II, where accused Rakesh was found present there in front of Mother Dairy Booth. My daughter/prosecutrix (name withheld) has pointed out towards accused Rakesh and on her pointing out accused Rakesh was 61 of 136 62 FIR No. 78/11 PS - Shahbad Dairy arrested from there by SI Mahender Pratap in my presence. He was interrogated by IO, his arrest memo and personal search memo were prepared. Accused was interrogated. Thereafter, accused led us to the place of occurrence i.e. where he had committed rape upon prosecutrix (name withheld) in the jungle at Hollambi Kalan. IO prepared pointing out memo in this regard. SI Mahender Pratap recorded my statement at PP Metro Vihar regarding the above mentioned facts."
From the aforesaid narration of PW1 - Ladoo Gopal it is clear that he used to do business of selling fuel wood at C170, Phase1, Metro Vihar, Hollambi Kalan, Delhi. Prosecutrix (name withheld), aged about 11 years is his daughter. On 05/03/2011 his daughter/prosecutrix (name withheld) had gone to attend her school i.e Govt. CoAid (Coed.) Secondary School, A Block, Metro Vihar, Delhi where she was studying in Class 6th at that time but, she did not come back to his house from School. He searched her here and there and went to School of his daughter but, he did not find any clue about her on that day, therefore, he went to PS Shahbad Dairy and told this fact to Police. IO recorded his statement regarding the missing of his girl/prosecutrix (name withheld). His said statement is Ex. PW1/A which bears his signatures at Point 'A'. On 06/03/2011 some neigbourers had told his wife Baby that his 62 of 136 63 FIR No. 78/11 PS - Shahbad Dairy daughter/prosecutrix (name withheld) is standing near ganda nala at C Block, Phase II, Metro Vihar & thereafter, he alongwith his wife reached there and found his daughter/prosecutrix (name withheld) standing there and she was weeping at the time. When they inquired from her about the reason of weeping and about her missing she told them that accused Rakesh, who was residing in a house of his maternal uncle situated in front of their house and she also told him that accused Rakesh (correctly identified) had kidnapped her and she also told them that accused Rakesh has committed galat kaam i.e rape upon her. Thereafter, they took their daughter/prosecutrix (name withheld) to Police Post and thereafter HC Anil Kumar made inquiry from them and his daughter/prosecutrix (name withheld). Thereafter, his daughter/prosecutrix (name withheld) was taken to MB Hospital, Poothkhurd. They also accompanied by Lady Constable, who took prosecutrix (name withheld) to MB Hospital. His daughter/prosecutrix (name withheld) was medically examined there. IO recorded his supplementary statement on 06/03/2011 at Police Post. On 07/03/2011, he joined the investigation with the IO/SI Mahender Pratap in this case. On that day, he alongwith his daughter/prosecutrix (name withheld) and 63 of 136 64 FIR No. 78/11 PS - Shahbad Dairy his wife Baby reached at PP Metro Vihar. SI Mahender Pratap made enquiry from his daughter/prosecutrix (name withheld) and thereafter they alongwith prosecutrix (name withheld) and SI Mahender Pratap and other Police officials left the Police Post & reached at Metro Vihar, Phase II where the house of accused found locked. Thereafter, they left the house of accused and reached at Metro Vihar, Phase I and one secret informer met them there and informed about the presence of accused Rakesh to IO. Thereafter, they reached at Mother Dairy Booth, Metro Vihar, Phase II, where accused Rakesh was found present there in front of Mother Dairy Booth. His daughter/prosecutrix (name withheld) has pointed out towards accused Rakesh and on her pointing out accused Rakesh was arrested from there by SI Mahender Pratap in his presence. He was interrogated by IO, his arrest memo and personal search memo were prepared. Accused was interrogated. Thereafter, accused led them to the place of occurrence i.e. where he had committed rape upon prosecutrix (name withheld) in the jungle at Hollambi Kalan. IO prepared pointing out memo in this regard. SI Mahender Pratap recorded his statement at PP Metro Vihar regarding the above mentioned facts.
64 of 136 65 FIR No. 78/11 PS - Shahbad Dairy During his crossexamination PW1 - Ladoo Gopal has negated the suggestions that he had reduced the age of his daughter for about 5 years or that his daughter was in love with the accused or that she had gone with him of her own free will or that no rape was committed by the accused.
PW2 - Ms. Baby in her examinationinchief has deposed that : "On 05/03/2011 my daughter/prosecutrix (name withheld) aged about 11 years had gone to School at about 8:00 a.m. as usual but she did not return from the School. When she (prosecutrix) did not return I alongwith my husband gone in search of prosecutrix (name withheld) and when we reached A Block School, Metro Vihar, we met the watchman of the School whose name I do not recollect, we enquired from him about the whereabouts of prosecutrix (name withheld) but he could not tell anything about her. Thereafter, I alongwith my husband searched prosecutrix (name withheld) near about the School and in Metro Vihar but she could not be found and at that time it was late hours, having no option we returned to our home and my husband went to Police Post and lodged a report in this regard.
My daughter/prosecutrix (name withheld) had already told me that a boy in the name of Rakesh, who was residing in Metro Vihar Phase 2 in our neighbourhood in his Mama's house used to tease my daughter/prosecutrix (name withheld) and used to follow her. When I was enquired by the Police, I told that I have doubt on accused Rakesh 65 of 136 66 FIR No. 78/11 PS - Shahbad Dairy that he had enticed my daughter and kidnapped her.
On 06/03/2011 at about 2:00 p.m. I was present in my house alongwith my husband, we were told by the neighbour, the name I do not recollect today that my daughter/prosecutrix (name withheld) was standing near Phase 2, Behind C Block, Near Ganda Naala. On receiving this information, I alongwith my husband reached there where prosecutrix (name withheld) was found present. I alongwith my husband enquired about circumstances from her (prosecutrix), she (prosecutrix) told me that accused Rakesh had committed "Galat Kaam" with her. Thereafter, I alongwith my husband took prosecutrix (name withheld) to Police Post and produced her before the IO. At the Police Post, Police officials took my daughter to M. B. Hospital for medical examination. After the medical examination, my daughter was produced before the Court and her statement was recorded. After that my daughter was handed over to me. At the time of her (prosecutrix) medical examination, I filled the Consent Form for medical examination of my daughter. Same is Ex. PW2/A which bears my signature at point 'A'. I identify the accused present in the Court today. I handed over the birth certificate of prosecutrix (name withheld) to IO."
From the aforesaid narration of PW2 - Ms. Baby it is clear that on 05/03/2011 her daughter/prosecutrix (name withheld) aged about 11 years had gone to School at about 8:00 a.m. as usual but she did not return from the School. When she (prosecutrix) did not return she (PW2) alongwith her husband gone in search of prosecutrix (name 66 of 136 67 FIR No. 78/11 PS - Shahbad Dairy withheld) and when they reached A Block School, Metro Vihar, they met the watchman of the School whose name she does not recollect, they enquired from him about the whereabouts of prosecutrix (name withheld) but he could not tell anything about her. Thereafter, she alongwith her husband searched prosecutrix (name withheld) near about the School and in Metro Vihar but she could not be found and at that time it was late hours, having no option they returned to their home and her husband gone to Police Post and lodged a report in this regard. Her daughter/prosecutrix (name withheld) had already told her that a boy in the name of Rakesh, who was residing in Metro Vihar Phase 2 in their neighbourhood in her Mama's house used to tease her daughter/prosecutrix (name withheld) and used to follow her. When she was enquired by the Police, she told that she has doubt on accused Rakesh that he had enticed her daughter and kidnapped her. On 06/03/2011 at about 2:00 p.m. she was present in her house alongwith her husband, they were told by the neighbour, the name she does not recollect that her daughter/prosecutrix (name withheld) was standing near Phase 2, Behind C Block, Near Ganda Naala. On receiving this information, she alongwith her husband reached there where prosecutrix 67 of 136 68 FIR No. 78/11 PS - Shahbad Dairy (name withheld) was found present. She alongwith her husband enquired about circumstances from her (prosecutrix), she (prosecutrix) told her that accused Rakesh had committed "Galat Kaam" with her. Thereafter, she alongwith her husband took prosecutrix (name withheld) to Police Post and produced her before the IO. At the Police Post, Police officials took her daughter to M. B. Hospital for medical examination. After the medical examination, her daughter was produced before the Court and her statement was recorded. After that her daughter was handed over to her. At the time of her (prosecutrix) medical examination, she (PW2) filled the Consent Form for medical examination of her daughter. Same is Ex. PW2/A which bears her signature at point 'A'. She identified the accused present in the Court. She handed over the birth certificate of prosecutrix (name withheld) to IO.
During her crossexamination PW2 - Ms. Baby has negated the suggestions that her daughter was in love with the accused or that she had gone with him of her own free will or that no rape was committed by the accused.
Inspite of incisive crossexamination of PW1 - Ladoo Gopal 68 of 136 69 FIR No. 78/11 PS - Shahbad Dairy and PW2 - Ms. Baby, nothing material has been brought out so as to impeach their creditworthiness. They have withstood the rigors of cross examination without being shaken. On careful perusal and analysis and by applying the discerning scrutiny standard [Ref. Raju @ Balachandran & Ors. Vs. State of Tamil Nadu 2012 XII AD (S.C.)1] their testimonies are found to be natural, clear, reliable, inspiring confidence and having a ring of truth. There is nothing in their statements to suggest that they had any animus against the accused Rakesh Kumar to falsely implicate him in the case.
17. While analysing the testimonies of PW3 - Prosecutrix, PW1
- Ladoo Gopal, father of the prosecutrix and PW2 - Ms. Baby, mother of the prosecutrix as discussed hereinabove, inspite of incisive cross examination of PW3 - Prosecutrix, PW1 - Ladoo Gopal and PW2 - Ms. Baby 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 PW3 Prosecutrix that when she alongwith Rakesh was coming out of the Jungle, Police caught them or that it was early morning and shop was not open or that the shops open 69 of 136 70 FIR No. 78/11 PS - Shahbad Dairy after 10 O'clock or that no uncle met her or that she is deposing falsely or that nothing happened with her or that there were many public persons or that she was aged 17 years at the time of incident or that she had gone with the accused voluntarily and had returned to her home on the same evening or that at the instance of her father she had made false allegations against accused about having raped her as her father has ill will against Mama of accused or that statements given to the Police or the Magistrate or before this Court were tutored the suggestions to PW1
- Ladoo Gopal that he had reduced the age of his daughter for about 5 years or that his daughter was in love with the accused or that she had gone with him of her own free will or that no rape was committed by the accused and the suggestions to PW2 - Ms. Baby that her daughter was in love with the accused or that she had gone with him of her own free will or that no rape was committed by the accused, were put, which were negated by the said PWs but the same have not at all being made probable much established by any cogent evidence. Further there is not an iota of evidence or even a suggestion that the accused has been falsely implicated because of animosity.
70 of 136 71 FIR No. 78/11 PS - Shahbad Dairy At the cost of repetition, from the suggestions put to PW1 - Ladoo Gopal, father of the prosecutrix, PW2 - Smt. Baby, mother of the prosecutrix and PW3 - prosecutrix, it is to be noticed that a futile attempt has been made by accused Rakesh Kumar to save his skin from the clutches of law by floating every possible theory. The theories floated by accused Rakesh Kumar are : The theory that, "She (prosecutrix) had gone with the accused voluntarily and had returned to her home on the same evening."
The theory that, "His (PW1 - Ladoo Gopal) daughter (prosecutrix) was in love with the accused."
AND The theory that, "She (prosecutrix) had gone with him (accused) of her own free will."
On careful perusal and analysis of the entire evidence on record, it is found that the said theories so propounded by accused Rakesh Kumar, have not at all been made probable much established by any cogent evidence, therefore falls flat on the ground. It is also to be 71 of 136 72 FIR No. 78/11 PS - Shahbad Dairy noticed that the said theory so propounded by the accused that, "His (PW1 - Ladoo Gopal) daughter (prosecutrix) was in love with the accused." was not put to PW3 - prosecutrix during her incisive and lengthy crossexamination. Nor the said theory so propounded by the accused that "She (prosecutrix) had gone with the accused voluntarily and had returned to her home on the same evening." was put to PW1
- Ladoo Gopal, father of the prosecutrix and PW2 - Smt. Baby, mother of the prosecutrix during their incisive and lengthy crossexamination. Nor even a single word regarding the said theories so propounded, was uttered by the accused during his statement recorded u/s 313 Cr.P.C.
18. It is well settled that rape, is crime and not a medical condition. Rape is a legal term and not a diagnosis to be made by the medical officer treating the victim.
It is to be noticed that the opinion expressed by Modi in Medical jurisprudence and Toxicology (Twenty First Edition) at 72 of 136 73 FIR No. 78/11 PS - Shahbad Dairy page 369 which reads as : "Thus to constitute the offence of rape it is not necessary that there should be complete penetration of penis with emission of semen and rupture of hymen. Partial penetration of the penis within the labia majora or the vulva or pudenda with or without emission of semen or even an attempt at penetration is quite possible to commit legally the offence of rape without producing any injury to the genitals or leaving any seminal stains. In such a case the medical officer should mention the negative facts in his report, but should not give his opinion that no rape had been committed. Rape, is crime and not a medical condition. Rape is a legal term and not a diagnosis to be made by the medical officer treating the victim. The only statement that can be made by the medical officer is that there is evidence of recent sexual activity. Whether the rape has occurred or not is a legal conclusion, not a medical one."
In Parikh's Textbook of Medical jurisprudence and Toxicology, the following passage is found : "Sexual intercourse : In law, this term is held to mean the slightest degree of penetration of the vulva by the penis with or without emission of semen. It is therefore quite possible to commit legally the offence of rape without producing any injury to the genitals or leaving any seminal stains."
73 of 136 74 FIR No. 78/11 PS - Shahbad Dairy 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 PW3 - Prosecutrix in the light of medical and gynaecological examination vide MLC Ex. PW8/A and from point 'X' to 'X' Ex. PW15/A on the MLC Ex. PW8/A and biological and serological evidence, together with the MLC of accused Rakesh Kumar Ex. PW6/A, as discussed hereinbefore, the act of sexual intercourse activity by complete penetration of penis with emission of semen or by partial penetration of the penis with emission of semen, within labia majora or the vulva or pudenda stands proved.
In the circumstances, it stands clearly established on the record, of the performance of the act of sexual intercourse by accused Rakesh Kumar with PW3 - Prosecutrix without her consent.
NOW LET THE SUBMISSIONS/PLEA RAISED BY THE LEARNED DEFENCE COUNSEL BE ANALYSED AND 74 of 136 75 FIR No. 78/11 PS - Shahbad Dairy APPRECIATED
19. Learned Counsel for accused submitted that to prove the age of the prosecutrix the prosecution examined PW10 Sh. R. K. Gupta who exhibited the birth certificate issued by the MCD as Ex. PW10/A and produced the original record of the registration of birth of a child named prosecutrix (name withheld), D/o Laddu Gopal and Smt. Baby, copy of which was exhibited as Ex. PW10/B. The said Ex. PW10/B shows that a child named prosecutrix (name withheld) was born on 23/07/2000 at N60/58, Durga Basti, Khaiber Pass, Delhi, whose father's name was Laddo Gopal and mother's name was Baby. The information for registering the birth of said prosecutrix (name withheld) was given by one 'Kamlesh' on 27/07/2000. Learned Counsel further submitted that the prosecution has not led any evidence to establish that the said birth certificate Ex. PW1/A and/or Ex. PW10/B was birth certificate of the prosecutrix herein. Learned Counsel further submitted that both PW1 Laddoo Gopal and PW2 Smt. Baby, the father and mother respectively of prosecutrix (name withheld), have stated in their examinationinchief that at the time of the incident their daughter, prosecutrix (name withheld), was about 11 years old, but none of them has stated in their 75 of 136 76 FIR No. 78/11 PS - Shahbad Dairy examinationinchief either about the place of birth of the said prosecutrix (name withheld) or as to when and in what circumstance the birth of prosecutrix (name withheld) was registered, much less about the identity of 'Kamlesh', who had allegedly given the information about the birth of a child named prosecutrix (name withheld). Learned Counsel further submitted that PW1 Laddoo Gopal, in his crossexamination has stated that prior to coming to Delhi he was residing in a village in Moradabad district where his first two children were born and that the name of his second child was 'prosecutrix (name withheld)'. He further stated that he was married 20/21 years ago and that while his first child was born after one year of his marriage his second child, namely prosecutrix (name withheld), was born one year after the birth of his first daughter. He also stated that he came to Delhi after about 34 years of his marriage. The said PW1 has further stated in his crossexamination that he got prepared the birth certificate of his daughter, prosecutrix (name withheld), from MCD on the basis of an affidavit in support of the date of birth of prosecutrix (name withheld) wherein he had mentioned her age on the lower side, which is contrary to the document Ex. PW1/B which shows that prosecutrix (name withheld) was born in Delhi and her 76 of 136 77 FIR No. 78/11 PS - Shahbad Dairy birth was recorded on the basis of information given by some person named Kamlesh. Learned Counsel further submitted that PW2 Smt. Baby, in her crossexamination has supported and corroborated the statement given by her husband, PW1 Laddoo Gopal in his cross examination, by stating that her marriage had been solemnized with Laddoo Gopal about 20 years ago and that she had given birth to two daughters within a period of two years of her marriage. Learned Counsel further submitted that from the evidence of PW1 and PW2 given in their respective crossexaminations the age of the prosecutrix (name withheld), at the time of alleged incident can safely be calculated as 1819 years. Learned Counsel further submitted that the prosecution, in its wisdom, has not cared to examine the said Kamlesh who was the only witness who could testify as to the identity of the person whose birth was registered on 27/07/2000 vide document Ex. PW10/B, her own identity and the source of her information, in the absence of which the said birth certificate Ex. PW10/A and/or Ex. PW10/B could not be said to be that of the prosecutrix (name withheld). Learned Counsel further submitted that moreover nonproduction and examination of Kamlesh, who was a material witness to establish that the birth certificate Ex.
77 of 136 78 FIR No. 78/11 PS - Shahbad Dairy PW10/A & B was that of the prosecutrix (name withheld), as a Prosecution Witness raises an adverse presumption against the prosecution that had the said Kamlesh been examined by the prosecution it would have demolished the claim of the prosecution that the said birth certificate pertained to the birth of the prosecutrix (name withheld). Learned Counsel further submitted that the prosecutrix (name withheld) was medically examined by Dr. Neeraj Kumari vide her Report Ex. PW15/A wherein the said Gynaecologist has noted the age of the prosecutrix as : 11 years (as told by mother); 15 years (accordingly to patient); 1314 years (by appearance). Learned Counsel further submitted that the said Gynaecologist had advised XRay for bone examination/Ossification test to determine the age of the prosecutrix and the Court can presume that the medical staff must have taken the XRay of the prosecutrix to determine her age and the Court may also presume that the said Ossification test result/report was not produced by the prosecution because had they produced it the same would have shown that the prosecutrix was older than 18 years and not a minor. Learned Counsel further submitted that it is apparent that the prosecutrix was not less than 18 years of age on 05/03/2011. Even otherwise the prosecution 78 of 136 79 FIR No. 78/11 PS - Shahbad Dairy had failed to establish either that the age of the prosecutrix was less than 18 years or 16 years or 12 years on 05/03/2011.
I have carefully perused and analysed the evidence on record.
The evidence with regard to the age of the prosecutrix has been reproduced, discussed and analysed hereinabove under the heading, "Age of the Prosecutrix" and at the cost of repetition, it stands established on the record that PW3 - prosecutrix was aged 13 years, 07 months and 12 days as on the date of alleged incident on 05/03/2011.
So far as the plea raised by the Learned Counsel for the accused that PW1 - Ladoo Gopal, father of the prosecutrix and PW2 - Smt. Baby, mother of the prosecutrix, in their examinationinchief have not stated either about the place of birth of the prosecutrix or as to when and in what circumstances, the birth of the prosecutrix was registered nor about the identity of 'Kamlesh' who had allegedly given the information about the birth of a child/prosecutrix (name withheld), is concerned, it is evident from the record that during the cross examination of PW1 - Ladoo Gopal, father of the prosecutrix and PW2 -
79 of 136 80 FIR No. 78/11 PS - Shahbad Dairy Smt. Baby, mother of the prosecutrix, the said accused did not voice his concern or raised any apprehension on the aspects regarding which the plea has been raised. They were the only competent witnesses who would have been fully capable of explaining correctly the factual situation. For failure to do so, accused is to blame himself and none else.
So far as the plea raised for the non production of Kamlesh, the witness who testify as to the identity of the person whose birth was registered on 27/07/2000 vide Ex. PW10/B, her own identity and source of her information, is concerned, it is evident from the record that during the crossexamination of PW16 - SI Mahender Pratap IO, the said accused did not voice his concern or raised any apprehension on the aspects regarding which the plea has been raised. He was the only competent witnesses 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 case 'Narain Singh Vs. State' 2013 I AD (DELHI) 685, the Hon'ble Delhi High Court after referring to the cases, 'Pal Singh Vs. State of U.P.' (1979) 4 SCC 345; 'State of U.P. Vs. Anil Singh' AIR 1988 80 of 136 81 FIR No. 78/11 PS - Shahbad Dairy SC 1998 and 'Krishna Mochi Vs. State of Bihar' 2002 IV AD (S.C.) 45 held that, once it is held that the prosecution evidence is reliable and trustworthy and proves the offence, failure to examine other witnesses is not fatal. Nonexamination of further witnesses does not affect the credibility of the witnesses relied upon. It is quality of the evidence and not the number of witnesses that matters.
The Hon'ble Supreme Court in case Takhaji Hiraji Vs Thakore Kubersing Chamansing 2001 IV AD (S.C) 393 has observed that : "It is true that if a material witness, which would unfold the genesis of the incident or an essential part of the prosecution case, not convincingly brought to fore otherwise, or where there is a gap or infirmity in the prosecution case which would have been supplied or made good by examining a witness which though available is not examined, the prosecution case can be termed as suffering from a deficiency and withholding of such a material witness would oblige the Court to draw an adverse inference against the prosecution by holding that if the witness would have been examined would not have supported the prosecution case. On the other hand if already overwhelming evidence is available and examination of other witnesses would only be a repetition or duplication of the evidence already adduced. Non examination of such other witnesses may not be material. In such a case the Court ought to scrutinies the worth of the evidence adduced. The 81 of 136 82 FIR No. 78/11 PS - Shahbad Dairy Court of facts must ask itself Whether in the facts and circumstances of the case, it was necessary to examine such other witness, and if so, whether such witness was available to be examined and yet was being withheld from the Court. If the answer be positive then only a question of drawing an adverse inference may arise. If the witnesses already examined are reliable and the testimony coming from their mouth is unimpeachable the Court can safely act upon it uninfluenced by the factum of nonexamination of the witnesses."
So far as the plea raised by the Learned for the accused that PW15 - Dr. Gitanjali Singh during her crossexamination has deposed that, "Dr. Neeraj Kumari has also advised for bone examination." but no Ossification Test Report of the prosecutrix has been produced, is concerned, it is evident from the record that during the crossexamination of PW16 - SI Mahender Pratap IO, the said accused did not voice his concern or raised any apprehension on the aspect regarding which the plea has been raised. He was the only competent witnesses 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.
So far as the plea raised by the Learned Counsel for the accused that PW15 - Dr. Gitanjali Singh has deposed that Dr. Neeraj 82 of 136 83 FIR No. 78/11 PS - Shahbad Dairy Kumari vide her examination from point 'X' to 'X' on Ex. PW15/A bearing signature of Dr. Neeraj Kumari at point 'B' has noted the age of the prosecutrix as 11 years, as told by the mother of the prosecutrix, as 15 years, according to the patient/prosecutrix and as about 1314 years by appearance, is concerned, it is not made clear by the Learned Counsel for the accused as to what he intends to convey from the plea so raised. Nor does it falsify the case of the prosecution in view of the evidence as reproduced, analysed and discussed hereinbefore under the heading 'Age of the prosecutrix'. Moreover Dr. Neeraj Kumari has specifically mentioned in the examination Ex. PW5/A of the prosecutrix regarding the age as was told to her by the patient/prosecutrix, by the mother of the prosecutrix and as to what she observed by appearance of the prosecutrix, as testified by PW15 - Dr. Gitanjali Singh.
Recently in case 'Mahavir Singh Vs. State of Haryana', (2014) 6 SCC 716, the Hon'ble Supreme Court has observed that it is settled legal proposition that in case the question is not put to the witness in crossexamination who could furnish explanation on a particular issue, the correctness or legality of the said fact/issue could not be raised.
83 of 136 84 FIR No. 78/11 PS - Shahbad Dairy 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.
20. Learned Counsel for the accused submitted that the prosecutrix PW3 has stated that she went with the accused on his motorcycle in the morning of 05/03/2011 where after the accused bought a 'salwar suit' for her and they roamed for the whole day and then in the night the accused committed rape upon her in the jungle of Narela. Learned Counsel further submitted that the story of the prosecutrix on the face of it appears to be false and fabricated as it is practically impossible for a young girl to be taken around the busy town/market against her will and the girl not seeking or shouting for help; moreso she was taken to a shop where she stayed for about one hour and allegedly 84 of 136 85 FIR No. 78/11 PS - Shahbad Dairy checked and wore a new dress but did neither try to run away or cry for help. Learned Counsel further submitted that the girl remained in the jungle the whole of the night of 5th6th March, 2011 in only the dress she was wearing, which is highly improbable. The prosecutrix PW3 has stated in her crossexamination by the accused that it was winter time at the time of incident and even the Court can take judicial notice of the fact that in the late night and early morning of early March the weather in Delhi is very cold and unbearable in the open. Learned Counsel further submitted that though the prosecutrix was allegedly raped in a jungle yet there was not a single scratch on her entire body which is impossible and belies her claim. Learned Counsel further submitted that PW3 prosecutrix (name withheld) has stated in her deposition recorded on 04/02/2012 that on 05/03/2011 at about 8:00 a.m. the accused met her at the gate of her school on a motorcycle and asked her to accompany him for a ride where after she went with him to Narela on his motorcycle. Learned Counsel further submitted that PW3 - prosecutrix in her examinationinchief recorded on 04/02/2012 while alleging that in the night of 0506/03/2011 the accused took her to the jungle of Narela and thereafter he committed rape on her had not uttered 85 of 136 86 FIR No. 78/11 PS - Shahbad Dairy a single word alleging any force or inducement or deceit by the accused. Learned Counsel further submitted that PW3 prosecutrix was cross examined by the Learned APP on 25/05/2012 wherein she admitted the suggestions put by the Learned APP that wherein the words "enticed" and "forcefully" were used; however neither of them was explained to show in what manner she was 'enticed' or 'forced' by the accused. Learned Counsel further submitted that though PW3 prosecutrix in her crossexamination by the accused tried to improve her previous version by stating that she had been threatened by the accused yet her entire statement in crossexamination by accused shows that she had a number of opportunity either to call for help as she had been roaming around in public place or the flee from the alleged clutches of the accused, particularly while she was in a shop for about one hour where she claims to have changed her clothes.
I have carefully perused and analysed the evidence on record.
The testimony of PW3 - prosecutrix has been reproduced, discussed and analysed hereinabove. At the cost of repetition, the 86 of 136 87 FIR No. 78/11 PS - Shahbad Dairy testimony of PW3 - prosecutrix has been found to be clear, natural, cogent, convincing and inspiring confidence. There is nothing in her statement to suggest that she had any animus against the accused to falsely implicate him in the case.
At the cost of repetition, PW3 Prosecutrix, in her examinationinchief has deposed which is reproduced and reads as under : "On 05/03/2011, I was studying in 6th Class in a Government School at C1, Metro Vihar. Accused Rakesh present in the Court today was residing in front of our house. I used to see him when he used to roam in the street. When I left my house at about 8:00 a.m. as usual to go to my School, accused present in the Court today met me at the gate of my School on the motorcycle and accused talked to me and he asked me to accompany him for a ride. Thereafter, I alongwith accused went to Narela on his motorcycle and then he took me in the jungle of Narela and thereafter, he committed rape on me. We remained in the jungle during the intervening night of 0506/03/2011. On the next day i.e on 06/03/2011 in the afternoon when we were coming out of the jungle, Police caught us. Thereafter, we were brought to the Police Post. Thereafter, I was sent home alongwith my parents."
"On 06/03/2011 accused left me at Metro Vihar, Phase2, Ganda Nala. I told the facts to one passerby and requested him to tell about my presence at Ganda Nala to my parents. Thereafter, my parents came there and I disclosed all the facts to my parents and they took me to
87 of 136 88 FIR No. 78/11 PS - Shahbad Dairy Police Station and from where I was taken to the Hospital for medical examination. Thereafter, my statement was recorded by the Magistrate."
(Underlined by me) On analysing the entire testimony of PW3 - prosecutrix, it transpires that she has described the scenario implicating the accused to be author of the crime, of the committal of the sexual assault upon her. Accused has failed to elicit any material or relevant discrepancies or inconsistencies despite her searching cross examination.
So far as the plea raised by the Learned Counsel for the accused that, PW3 - prosecutrix in her examinationinchief has not uttered a single word alleging any force or inducement or deceit by the accused, is concerned, the same is found to have no substance in view of the categorical deposition made by PW3 - prosecutrix in her examinationinchief as reproduced hereinabove. The elements of force or inducement or deceit are to be inferred and analysed from the testimony of a witness. Non utterance of the said words by a witness 88 of 136 89 FIR No. 78/11 PS - Shahbad Dairy ipso facto does not falsify the testimony of the witness. 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.
As far as the plea raised by the Learned Counsel for the accused that the entire crossexamination of PW3 - prosecutrix shows that, she had a number of opportunity either to call for help as she had been roaming around in public place or the flee from the alleged clutches of the accused, particularly while she was in a shop for about one hour where she claims to have changed her clothes, is concerned, it is evident from the record that during the crossexamination of PW3 - prosecutrix, no explanation has been obtained from her on the aspects regarding which the plea has been raised. She was the only competent witness who would have been fully capable of explaining correctly the factual situation.
As regards the plea raised by Learned Counsel for the accused that, PW3 prosecutrix was crossexamined by the Learned APP on 25/05/2012 wherein she admitted the suggestions put by the Learned APP that wherein the words "enticed" and "forcefully" were 89 of 136 90 FIR No. 78/11 PS - Shahbad Dairy used; however neither of them was explained to show in what manner she was 'enticed' or 'forced' by the accused, is concerned, it is evident from the record that during the crossexamination of PW3 - prosecutrix, the said accused did not voice his concern or raised any apprehension on the aspect regarding which the plea has been raised. She was the only competent witness who would have been fully capable of explaining correctly the factual situation. For such failure, accused is to blame himself and none else.
So far as the plea raised by Learned Counsel for the accused that, the girl remained in the jungle the whole of the night of 5th6th March 2011 in only the dress she was wearing, which is highly improbable, is concerned, it is evident from the record that during the crossexamination of PW3 - prosecutrix, the said accused did not voice his concern or raised any apprehension on the aspect regarding which the plea has been raised. She was the only competent witness who would have been fully capable of explaining correctly the factual situation. For such failure, accused is to blame himself and none else.
At the cost of repetition, recently in case 'Mahavir Singh 90 of 136 91 FIR No. 78/11 PS - Shahbad Dairy Vs. State of Haryana', (2014) 6 SCC 716, the Hon'ble Supreme Court has observed that it is settled legal proposition that in case the question is not put to the witness in crossexamination who could furnish explanation on a particular issue, the correctness or legality of the said fact/issue could not be raised.
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.
21. Learned Counsel for the accused submitted that the prosecutrix PW3 is unreliable as her statement under Section 164 Cr.P.C. (Ex. PW3/A) as well as that recorded before the Court appears to be tutored. She gave her age in Ex. PW3/A recorded on 07/03/2011 as 11 years but before the doctor in the MLC (Ex. PW8/A) on 06/03/2011 and 91 of 136 92 FIR No. 78/11 PS - Shahbad Dairy in her statement as PW3 recorded on 04/02/2012 she gave her age as 15 years; PW3 has stated in her statement Ex. PW3/A that after the accused had committed rape upon her he continued threatening her the whole night whereas she has not said any such thing in her deposition as PW3 except admitting the suggestion given by the Learned APP that accused had also threatened her in the night; The prosecutrix PW3 had stated in her statement Ex. PW3/A that the accused had met her on a motorcycle and told her that he would take her to Bihar but had lured and taken her to Narela but in her statement as PW3 she has given a completely different version by stating that on 05/03/2011 the accused met him on his motorcycle at the gate of her school where he talked to her and asked her to accompany him for a ride; In her statement under Section 164 Cr.P.C. (Ex. PW3/A) the prosecutrix PW3 has stated that on 06/03/2011 the accused left her near 'Ganda Nala' of Metro Vihar, Phase 3 at about 3:00 a.m. but in her statement as PW3 recorded on 04/02/2012 she has stated that on 06/03/2011 in the afternoon when she and the accused were coming out of the jungle the Police caught them and thereafter they were brought to the Police Post and then sent with her parents; However in her statement recorded on 25/05/2012 the said PW3 gave a different 92 of 136 93 FIR No. 78/11 PS - Shahbad Dairy version by stating that on 06/03/2011 the accused left her at 'Ganda Nala' of Metro Vihar, Phase - 2 where she requested one passerby to tell about her presence at 'Ganda Nala' to her parents where after her parents came there to whom she disclosed all the facts and they took her to Police Station and the said PW3 in her crossexamination by the accused on 25/05/2012 has stated : "It is correct that IO had told me about my statement."
I have carefully perused and analysed the evidence on record.
At the outset, the plea regarding the age of the prosecutrix has been discussed hereinbefore. Moreover, the age given by PW3 - prosecutrix in her statement u/s 164 Cr.P.C. Ex. PW3/A [also Ex. PW14/B] recorded on 07/03/2011 as 11 years and had given her age to the Doctor in the MLC Ex. PW8/A on 06/03/2011 and at the time of her recording of the statement in the Court on 04/02/2012 as 15 years does not falsify the case of the prosecution as at the cost of repetition, it stands established on the record that PW3 - prosecutrix was aged 13 years, 07 months and 12 days as on the date of alleged incident on 05/03/2011.
93 of 136 94 FIR No. 78/11 PS - Shahbad Dairy The testimony of PW3 - prosecutrix has been reproduced, discussed and analysed hereinabove. At the cost of repetition, the testimony of PW3 - prosecutrix has been found to be clear, natural, cogent, convincing and inspiring confidence. There is nothing in her statement to suggest that she had any animus against the accused to falsely implicate him in the case.
So far as the plea raised, by the Learned Counsel for the accused that, PW3 has stated in her statement Ex. PW3/A that after the accused had committed rape upon her he continued threatening her the whole night whereas she has not said any such thing in her deposition as PW3 except admitting the suggestion given by the Learned APP that accused had also threatened her in the night; The prosecutrix PW3 had stated in her statement Ex. PW3/A that the accused had met her on a motorcycle and told her that he would take her to Bihar but had lured and taken her to Narela but in her statement as PW3 she has given a completely different version by stating that on 05/03/2011 the accused met him on his motorcycle at the gate of her school where he talked to her and asked her to accompany him for a ride, is concerned, on analysing the entire testimony of PW3 - prosecutrix, it transpires that she 94 of 136 95 FIR No. 78/11 PS - Shahbad Dairy has described the scenario implicating the accused to be author of the crime, of the committal of the sexual assault upon her. Accused has failed to elicit any material or relevant discrepancies or inconsistencies despite her searching crossexamination. So called variations in the statements of the witnesses in fact, are the 'clarifications' or 'elaboration' of the facts in response to the questions put to her in the statement u/s 164 Cr.P.C. Ex. PW17/B (be also read as PW3/A) therefore do not in any way corrode the credibility of the witness.
So far as the plea raised by the Learned Counsel for the accused that, in her statement under Section 164 Cr.P.C. (Ex. PW3/A) the prosecutrix PW3 has stated that on 06/03/2011 the accused left her near 'Ganda Nala' of Metro Vihar, Phase 3 at about 3:00 a.m. but in her statement as PW3 recorded on 04/02/2012 she has stated that on 06/03/2011 in the afternoon when she and the accused were coming out of the jungle the Police caught them and thereafter they were brought to the Police Post and then sent with her parents; However in her statement recorded on 25/05/2012 the said PW3 gave a different version by stating that on 06/03/2011 the accused left her at 'Ganda Nala' of Metro Vihar, Phase - 2 where she requested one passerby to tell about her presence at 95 of 136 96 FIR No. 78/11 PS - Shahbad Dairy 'Ganda Nala' to her parents where after her parents came there to whom she disclosed all the facts and they took her to Police Station, is concerned, the said discrepancies regarding which the plea has been raised, do not reflect upon the substantive evidence and the probative value of the statement made by PW3 - prosecutrix on material and relevant aspects. Nor do they vitiate or negate the case of the prosecution which is otherwise proved on record by clear, cogent and convincing evidence. Nor do they dislodge the substratum of the prosecution case and despite their existence, the clear, cogent, convincing, reliable and trustworthy evidence proved on the record b ears out the case of the prosecution. The version of the prosecution on the core spectrum of the crime has remained intact. Moreover a witness cannot be expected to possess a photographic memory and to recall the details of an incident. It is not as if a video tape is replayed on the mental screen. There are bound to be some discrepancies in the narration of certain witnesses when they speak out details. The corroboration of evidence with mathematical niceties cannot be expected in criminal cases.
Even the honest and truthful witness may differ in some 96 of 136 97 FIR No. 78/11 PS - Shahbad Dairy 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 :
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
97 of 136 98 FIR No. 78/11 PS - Shahbad Dairy 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 : "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 98 of 136 99 FIR No. 78/11 PS - Shahbad Dairy 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].
So far as the plea raised by the Learned Counsel for the accused that PW3 - prosecutrix in her crossexamination by the Learned Counsel for the accused recorded on 25/05/2012 has stated that, "It is correct that IO had told me about my statement", is concerned, no 99 of 136 100 FIR No. 78/11 PS - Shahbad Dairy doubt, PW3 - prosecutrix during her crossexamination has deposed that, "It is correct that IO had told me about my statement". At the best, this could be stated to be refreshing the memory of the witness. She is not a tutored witness. Had she been a tutored witness, then, accused would not have been heard saying that there are variations and inconsistencies in the statements recorded before the Police, u/s 164 Cr.P.C. and the statement made before the Court. In the circumstances, nothing more can be read in the said part of the testimony of PW3 - prosecutrix regarding which the plea has been raised. The testimony of PW3 - prosecutrix has been reproduced, discussed and analysed herein before. At the cost of repetition, the testimony of PW3 - prosecutrix has been found to be clear, natural, cogent, convincing and inspiring confidence. There is nothing in her statement to suggest that she had any animus against the accused to falsely implicate him in the case.
At the cost of repetition, on analysing the entire testimony of PW3 - prosecutrix, it transpires that she has described the scenario implicating the accused to be author of the crime, of the committal of the sexual assault upon her. Accused has failed to elicit any material or 100 of 136 101 FIR No. 78/11 PS - Shahbad Dairy relevant discrepancies or inconsistencies despite her searching cross examination.
In the circumstances, there is no substance in the plea so raised by the Learned Counsel for the accused.
22. Learned Counsel for accused submitted that the prosecutrix was medically examined immediately after her alleged rape and recovery on 06/03/2011 vide Report Ex. 15/A by which time she had only voided urine and not taken bath, yet the said report shows that there was neither any blood or seminal or other stain on her body nor was there any foreign material on her body and even her pubic hair was not found to be matted. On the basis of the said Report PW15 has stated : ".......... No fresh injury, bruise, abrasion found over her body. Secondary characters developed. AOM one year back. LMP three days back. Breast developed well, no injury seen on breast. Auxiliary hairs present. Per Abdomen soft. Local examination Pubic hair present, no fresh injury seen on private parts, hymen torned, introitus admitted tip of little finger, no external hair found all over body .........". Learned Counsel further 101 of 136 102 FIR No. 78/11 PS - Shahbad Dairy submitted that the MLC of accused (Ex. PW6/A) shows that no fresh external injury was found on the accused. Learned Counsel further submitted that the claim by PW3 that she had been raped by the accused is falsified by the medical evidence as given in the report of the Gynaecologist, Ex. PW15/A and the statement of PW15, Dr. Geetanjali Singh given on the basis of the said report. Learned Counsel further submitted that the prosecutrix is said to have been raped by the accused in a jungle yet there is not even a scratch or bruise either on the body of the said prosecutrix or the accused and even though she had not taken bath after the alleged incident the doctor did neither find any blood stain or foreign material or any seminal or other stain on the body of the prosecutrix nor did the doctor find any injury on the private parts of the prosecutrix.
I have carefully perused and analysed the evidence on record.
The testimony of PW3 - prosecutrix has been reproduced, discussed and analysed hereinabove. At the cost of repetition, the testimony of PW3 - prosecutrix has been found to be clear, natural, 102 of 136 103 FIR No. 78/11 PS - Shahbad Dairy cogent, convincing and inspiring confidence. There is nothing in her statement to suggest that she had any animus against the accused to falsely implicate him in the case.
The medical/gynaecological examination of the PW3 - prosecutrix has been discussed and analysed hereinbefore. PW8 Dr. N. Masand, Medical Officer, Maharishi Valmiki Hospital, Pooth Khurd, Delhi, has proved the medical examination of the prosecutrix vide MLC Ex. PW8/A and PW15 Dr. Geetanjali Singh, Specialist O & G, Maharishi Valmiki Hospital, Pooth Khurd, Delhi, has proved the gynaecological examination of the prosecutrix as was conducted by Dr. Neeraj Kumari from point 'X' to 'X' on Ex. PW15/A. At the cost of repetition, PW8 Dr. N. Masand, Medical Officer, Maharishi Valmiki Hospital, Pooth Khurd, Delhi has deposed that on 06/03/2011 at 05:01 p.m. patient/prosecutrix (name withheld) D/o Ladoo Gopal, 11 years female brought to casualty for examination by Constable Sharmila with the alleged history of sexual assault. He examined the patient and after the examination he referred the patient to Gynae Department for further examination. The MLC is Ex. PW8/A and 103 of 136 104 FIR No. 78/11 PS - Shahbad Dairy his report on the same is from point 'A' to 'A' and the same bearing his signature at point 'X'.
Despite grant of opportunity, PW8 Dr. N. Masand was not crossexamined on behalf of the accused.
At the cost of repetition, PW15 Dr. Geetanjali Singh, Specialist O & G, Maharishi Valmiki Hospital, Pooth Khurd, Delhi, who deposed that she has been deputed in this case by the MS of the Hospital to depose on behalf of Dr. Neeraj Kumari. She has seen MLC No. 850/11 of prosecutrix (name withheld) D/o Ladoo Gopal, Aged - 11 years, Female who was brought to Hospital for medical examination on 06/03/2011. The patient was initially examined by CMO on duty and thereafter, she was referred to SR, Gynae whereupon the patient was examined by Dr. Neeraj Kumari. As per MLC, there is alleged H/o sexual assault yesterday evening by neighbour named Rakesh, according to patient, patient is unmarried, 11 years as told by mother but by appearance she is about 13 to 14 years old. According to patient she is 15 years old. Patient is conscious, cooperative, well oriented with time, place and person. Consent for (of) mother (was) taken for 104 of 136 105 FIR No. 78/11 PS - Shahbad Dairy gynaecological examination. No fresh injury bruise, abrasion found over body. Secondary sexual characters developed. AOM one year back. LMP three days back. Breast development well no injury seen on breast. Axillary hairs present. Per abdomen soft. Local examination - Pubic hair present, no fresh injury seen on private parts, hymen torned, introitus admitted tip of little finger, no external hair found all over body. The samples were taken, sealed and handed over to the concerned officer. The examination of Dr. Neeraj Kumari is at point 'X' to 'X' and is Ex. PW15/A and bearing signature of Dr. Neeraj Kumari at point 'B'.
During her crossexamination, PW15 Dr. Geetanjali Singh has deposed that, "Dr. Neeraj Kumari has also advised XRay for bone examination. It is wrong to suggest that I am deposing falsely".
There is nothing in the crossexamination of PW15 Dr. Geetanjali Singh so as to impeach her creditworthiness.
The medical evidence of accused Rakesh Kumar has been discussed and analysed hereinbefore. PW6 Dr. Amit Shokeen, CMO, MB Hospital, Pooth Khurd, Delhi, has proved the medical examination of the accused vide MLC Ex. PW6/A. 105 of 136 106 FIR No. 78/11 PS - Shahbad Dairy At the cost of repetition, PW6 Dr. Amit Shokeen, CMO, MB Hospital, Pooth Khurd, Delhi has deposed that on 07/03/2011 at about 10:45 a.m. patient Rakesh Kumar S/o Manoj Kumar was brought to Hospital by Constable Prem Prakash. He examined the patient vide MLC No. 857/11. Same is Ex. PW6/A bearing his signature at point 'A'. During physical examination of genital organs, nothing suggest that patient is not capable of sexual intercourse. During examination blood, scalp hair, pubic hair and nail were sealed and were handed over it to IO. About semen sample could not be collected.
Despite grant of opportunity, PW6 Dr. Amit Shokeen was not crossexamined on behalf of the accused.
So far as the plea raised by the Learned Counsel for the accused regarding nonfinding of any fresh external injury on the body and private parts of the prosecutrix and of nonfinding of any injury on the body of the accused, is concerned, the absence of any injury does not falsify the case of the prosecution which is otherwise proved on record by clear, cogent and convincing evidence.
106 of 136 107 FIR No. 78/11 PS - Shahbad Dairy Emission of semen or rupture of hymen or leaving of seminal stains or producing of any injury to the genitals is not necessary to constitute the offence of rape. Complete penetration or partial penetration of penis within the labia majora or the vulva or pudenda with or without emission of semen or even an attempt at penetration is quite possible to commit legally the offence of rape without producing any injury to the genitals or leaving any seminal stains. (Vide Modi in Medical jurisprudence and Toxicology (Twenty First Edition) at page 369 & Parikh's Textbook of Medical jurisprudence and Toxicology).
Explanation appended to Section - 375 IPC clearly provides penetration is sufficient to constitute the sexual intercourse necessary to the offence of rape.
It is also to be noticed that in case, 'Ranjit Hazarika Vs. State of Assam', (1998) 8 SCC 635, the Hon'ble Supreme Court observed that nonrupture of hymen or absence of injury on victim's private parts does not belie the testimony of the prosecutrix.
107 of 136 108 FIR No. 78/11 PS - Shahbad Dairy In case 'O. M. Baby (Dead) by LRs Vs. State of Kerala', 2012 VI AD (S.C.) 521, the Hon'ble Supreme Court held that absence of injuries or mark of violence on the person of the prosecutrix may not be decisive, particularly, in a situation where the victim did not offer any resistance on account of threat or fear meted out to her.
In the circumstances, there is no substance in the plea so raised by the Learned Counsel for the accused.
23. Learned Counsel for the accused submitted that even the FSL Report (Ex. PW16/C) does not establish any connection between the accused and the prosecutrix PW3.
I have carefully perused and analysed the evidence on record.
The biological and serological evidence Ex. PW16/C has been reproduced, discussed and analysed hereinbefore.
So far as the plea raised by the Learned Counsel for the 108 of 136 109 FIR No. 78/11 PS - Shahbad Dairy accused that, the FSL Report (Ex. PW16/C) does not establish any connection between the accused and the prosecutrix PW3, is concerned, it is found to have no substance, in view of as to what has been discussed under the heading "Biological and Serological Evidence" however, at the cost of repetition, as per the biological report Ex. PW16/C, prosecution has discharged its initial burden of proving the presence of Human semen on exhibit '6a1' (Underwear of the prosecutrix seized vide seizure memo Ex. PW9/A dated 02/04/2011), exhibit '6g' (Vaginal swab of the prosecutrix seized vide seizure memo Ex. PW9/A dated 02/04/2011), exhibit '6h1' (Vaginal smear of the prosecutrix seized vide seizure memo Ex. PW9/A dated 02/04/2011), exhibit '6h2' (Vaginal smear of the prosecutrix seized vide seizure memo Ex. PW9/A dated 02/04/2011), exhibit '6i1' (Vaginal smear of the prosecutrix seized vide seizure memo Ex. PW9/A dated 02/04/2011), exhibit '6i2' (Vaginal smear of the prosecutrix seized vide seizure memo Ex. PW9/A dated 02/04/2011), exhibit '6k1' (Salwar of the prosecutrix seized vide seizure memo Ex. PW9/A dated 02/04/2011), exhibit '6k2' (Lady's shirt of the prosecutrix seized vide 109 of 136 110 FIR No. 78/11 PS - Shahbad Dairy seizure memo Ex. PW9/A dated 02/04/2011) and exhibit '6k3' (Lady's shirt of the prosecutrix seized vide seizure memo Ex. PW9/A dated 02/04/2011). Accused was under an obligation to explain how and under what circumstances, the Human semen came to be present on the said exhibits '6a1', '6g', '6h1', '6h2', '6i1', '6i2', '6k1', '6k2' and '6k3' as detailed hereinabove. The absence of such an explanation both in the section 313 Cr.P.C. statement of the accused Rakesh Kumar and his omission to lead any evidence in this regard and his complete denial becomes an additional link in the prosecution case.
In the circumstances, there is no substance in the plea so raised by the Learned Counsel for the accused.
24. Learned Counsel for accused submitted that PW12 HC Anil Kumar who was initially the IO in the FIR of the present case has stated in his crossexamination by the accused that 'I had asked Laddo Gopal, father of the prosecutrix, of coming to the Police Chowki at about 04:00 p.m. on 06/03/2011 on which he told that firstly they had gone to the house and after having discussion with his wife they had come to the 110 of 136 111 FIR No. 78/11 PS - Shahbad Dairy Police Chowki. Learned Counsel further submitted that while PW3 has stated in her statement Ex. PW3/A that the accused left her near Ganda Nala of Metro Vihar, PhaseIII at about 3:00 a.m. but in her examination inchief on 04/02/2011 that Police caught her and the accused in the after noon when they were coming out of the jungle. Her mother PW2 has stated that she learnt from some neighbour about her daughter being present near Ganda Nala of Metro Vihar, Phase II at about 2:00 p.m. where after she reached there with her husband and took the prosecutrix to the Police Post. Learned Counsel further submitted that the said PW3 in her crossexamination by the accused had stated that the accused left her near Ganda Nala at about 4:00 a.m. and that her father came and met her at about 8:00 a.m. Learned Counsel further submitted that PW12 stated that on 06/03/2011 the parents of prosecutrix brought her to the Police post at about 4:00 p.m. and told him that they had found the prosecutrix in the jungle near Metro Vihar, Phase I and told him that they had taken the prosecutrix after recovery to their home and had come to the Police post after discussing the matter, which not only demolishes the entire case of the prosecution but also shows that the allegations against the accused had been cooked up by the father and mother of the 111 of 136 112 FIR No. 78/11 PS - Shahbad Dairy prosecutrix.
I have carefully perused and analysed the evidence on record.
The testimonies of PW12 - HC Anil Kumar, PW3 -
prosecutrix, PW1 - Ladoo Gopal, father of the prosecutrix, PW2 - Smt. Baby, mother of the prosecutrix, PW13 - Constable Rajender Singh and PW16 - SI Mahender Pratap IO have been detailed and discussed here inbefore.
As regards the plea raised by the Learned Counsel for the accused that, PW12 HC Anil Kumar who was initially the IO in the FIR of the present case has stated in his crossexamination by the accused that 'I had asked Laddo Gopal, father of the prosecutrix, of coming to the Police Chowki at about 04:00 p.m. on 06/03/2011 on which he told that firstly they had gone to the house and after having discussion with his wife they had come to the Police Chowki. While PW3 has stated in her statement Ex. PW3/A that the accused left her near Ganda Nala of Metro Vihar, PhaseIII at about 3:00 a.m. but in her examinationinchief on 04/02/2011 that Police caught her and the accused in the after noon when 112 of 136 113 FIR No. 78/11 PS - Shahbad Dairy they were coming out of the jungle. Her mother PW2 has stated that she learnt from some neighbour about her daughter being present near Ganda Nala of Metro Vihar, Phase II at about 2:00 p.m. where after she reached there with her husband and took the prosecutrix to the Police Post. The said PW3 in her crossexamination by the accused had stated that the accused left her near Ganda Nala at about 4:00 a.m. and that her father came and met her at about 8:00 a.m. PW12 stated that on 06/03/2011 the parents of prosecutrix brought her to the Police Post at about 4:00 p.m. and told him that they had found the prosecutrix in the jungle near Metro Vihar, Phase I and told him that they had taken the prosecutrix after recovery to their home and had come to the Police Post after discussing the matter, which not only demolishes the entire case of the prosecution but also shows that the allegations against the accused had been cooked up by the father and mother of the prosecutrix, is concerned, it is found that they have deposed the facts as to what they acted, perceived, experienced and observed. The said discrepancies regarding which the plea has been raised, do not reflect upon the substantive evidence and the probative value of the statement made by PW3 - prosecutrix on material and relevant aspects. Nor do they vitiate 113 of 136 114 FIR No. 78/11 PS - Shahbad Dairy or negate the case of the prosecution which is otherwise proved on record by clear, cogent and convincing evidence. Nor do they dislodge the substratum of the prosecution case and despite their existence, the clear, cogent, convincing, reliable and trustworthy evidence proved on the record bears out the case of the prosecution. The version of the prosecution on the core spectrum of the crime has remained intact. Moreover a witness cannot be expected to possess a photographic memory and to recall the details of an incident. It is not as if a video tape is replayed on the mental screen and further there are bound to be some discrepancies in the narrations of the witnesses when they speak out details. The corroboration of evidence with mathematical niceties cannot be expected in criminal cases. [Ref. Mahmood's case (Supra), Leela Ram's case (Supra), Bharwada Bhoginbhai Hirjibhai (Supra) and Kuria's case (Supra)].
In the circumstances, there is no substance in the plea so raised by the Learned Counsel for the accused.
25. Learned Counsel for the accused submitted that PW1 and 114 of 136 115 FIR No. 78/11 PS - Shahbad Dairy PW2 have claimed that some neighbour informed them about the presence of prosecutrix near Ganda Nala which is reiterated by PW3 in her examination on 25/05/2012 wherein she stated in chief that she requested to a passerby to inform her parents about her presence where after her parents came at about 8:00 a.m. The prosecution has not examined the person who appears to have known the said PWs and had allegedly informed PW2 about PW3 as there was no such person and the story of the PWs was false and fabricated. Learned Counsel further submitted that while PW12 and PW13 have stated in their cross examination that the accused was arrested at the Mother Dairy Booth in Metro Vihar, Phase II at 09:30 a.m., the IO, PW16 has stated that the accused was arrested at the bus stop near Mother Dairy Booth at 9:00 a.m., but the arrest memo Ex. PW3/B shows that the accused was arrested at 04:00 p.m. at mother dairy. Learned Counsel further submitted that PW1 has stated that after his arrest the accused led them to the place of occurrence where the IO prepared 'pointing out memo' . PW2 does not say anything about the same. Both PW12 and PW13 who claim to be present when the accused was allegedly arrested, have stated that after arrest accused pointed out the place of occurrence but neither 115 of 136 116 FIR No. 78/11 PS - Shahbad Dairy has stated in their examinationinchief about preparation of pointing out memo. But in their respective crossexamination by the accused both the said witnesses have stated that the IO prepared 'pointing out memo'. Learned Counsel further submitted that neither does the IO of the case, PW16 say anything about preparation of 'pointing out memo' rather he states that after the arrest of accused and preparation of arrest memo and personal search memo the accused was brought to the Police Post nor is there any pointing out memo or site plan on record to show where the alleged rape was committed and as such the prosecution has failed to show that rape was committed at the place and in the manner as alleged. Learned Counsel further submitted that PW12 has stated in his cross examination by the accused that with the Police team PW1 Laddoo Gopal and PW13 (be read as PW3 Prosecutrix), went to the place of occurrence with the accused but PW13 has stated in his cross examination by the accused that no one else accompanied the Police team and the accused to the place of occurrence. Though PW3 claims to have worn the newly purchased suit over her school uniform yet the school uniform was not seized.
116 of 136 117 FIR No. 78/11 PS - Shahbad Dairy I have carefully perused and analysed the evidence on record.
The testimony of PW3 - prosecutrix has been reproduced, discussed and analysed hereinabove. At the cost of repetition, the testimony of PW3 - prosecutrix has been found to be clear, natural, cogent, convincing and inspiring confidence. There is nothing in her statement to suggest that she had any animus against the accused to falsely implicate him in the case.
The testimonies of PW12 - HC Anil Kumar, PW3 -
prosecutrix, PW1 - Ladoo Gopal, father of the prosecutrix, PW2 - Smt. Baby, mother of the prosecutrix, PW13 - Constable Rajender Singh and PW16 - SI Mahender Pratap IO have been detailed and discussed here inbefore.
As regards the plea raised by the Learned Counsel for the accused that, PW1 and PW2 have claimed that some neighbour informed them about the presence of prosecutrix near Ganda Nala which is reiterated by PW3 in her examination on 25/05/2012 wherein she stated in chief that she requested to a passerby to inform her parents about her presence where after her parents came at about 8:00 a.m. The 117 of 136 118 FIR No. 78/11 PS - Shahbad Dairy prosecution has not examined the person who appears to have known the said PWs and had allegedly informed PW2 about PW3 as there was no such person and the story of the PWs was false and fabricated, is concerned, on careful perusal and analysis of the testimonies of PW1 - Ladoo Gopal, father of the prosecutrix, PW2 - Smt. Baby, mother of the prosecutrix and PW3 - prosecutrix, it is found that they have deposed the facts as to what they acted, perceived, experienced and observed. Moreover, the said discrepancies regarding which the plea has been raised, do not reflect upon the substantive evidence and the probative value of the statement made by PW3 - prosecutrix on material and relevant aspects. Nor do they vitiate or negate the case of the prosecution which is otherwise proved on record by clear, cogent and convincing evidence. Nor do they dislodge the substratum of the prosecution case and despite their existence, the clear, cogent, convincing, reliable and trustworthy evidence proved on the record bears out the case of the prosecution. The version of the prosecutrix on the core spectrum of the crime has remained intact. Moreover a witness cannot be expected to possess a photographic memory and to recall the details of an incident. It is not as if a video tape is replayed on the 118 of 136 119 FIR No. 78/11 PS - Shahbad Dairy mental screen. There are bound to be some discrepancies in the narration of certain witnesses when they speak out details. The corroboration of evidence with mathematical niceties cannot be expected in criminal cases. The power of observation, retention and reproduction differs with individuals. [Ref. Mahmood's case (Supra), Leela Ram's case (Supra), Bharwada Bhoginbhai Hirjibhai (Supra) and Kuria's case (Supra)].
The prosecution can be expected to examine only those who have witnessed the events and not those who have not seen it though the neighbourhood may be replete with other residents also.
In case 'State of Rajasthan Vs. Teja Ram & Ors.', AIR 1999 SC 1776, the Hon'ble Supreme Court has held that : "The overinsistence on witnesses having no relation with the victims often results in criminal justice going awry. 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 119 of 136 120 FIR No. 78/11 PS - Shahbad Dairy 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."
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).
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 : 120 of 136 121 FIR No. 78/11 PS - Shahbad Dairy "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."
So far as the plea raised by the Learned Counsel for the accused that, While PW12 and PW13 have stated in their cross examination that the accused was arrested at the Mother Dairy Booth in Metro Vihar, Phase II at 09:30 a.m., the IO, PW16 has stated that the accused was arrested at the bus stop near Mother Dairy Booth at 9:00 a.m., but the arrest memo Ex. PW3/B shows that the accused was arrested at 04:00 p.m. at mother dairy, is concerned, it is evident from the record that during the crossexamination of PW16 - SI Mahender Partap IO, the said accused did not voice his concern or raised any apprehension on the aspect regarding which the plea has been raised. He was the only competent witnesses 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.
So far as the plea raised by the Learned Counsel for the 121 of 136 122 FIR No. 78/11 PS - Shahbad Dairy accused that, PW1 has stated that after his arrest the accused led them to the place of occurrence where the IO prepared 'pointing out memo'. PW2 does not say anything about the same. Both PW12 and PW13 who claim to be present when the accused was allegedly arrested, have stated that after arrest accused pointed out the place of occurrence but neither have stated in their examinationinchief about preparation of pointing out memo. But in their respective crossexamination by the accused both the said witnesses have stated that the IO prepared 'pointing out memo', is concerned, it is evident from the record that during the cross examination of PW16 - SI Mahender Pratap IO, the said accused did not voice his concern or raised any apprehension on the aspect regarding which the plea has been raised. He was the only competent witnesses who would have been fully capable of explaining correctly the factual situation. Moreover omission by PW2 - Smt. Baby to depose regarding the preparation of 'pointing out memo' in her testimony and the omission by PW12 - HC Anil Kumar and PW13 - Constable Rajender Singh to depose regarding the preparation of 'pointing out memo' in their examinationinchief does not falsify the case of the prosecution which is otherwise proved on the record by clear, cogent and convincing evidence.
122 of 136 123 FIR No. 78/11 PS - Shahbad Dairy So far as the plea raised by the Learned Counsel for the accused that, Neither does the IO of the case, PW16 say anything about preparation of 'pointing out memo' rather he states that after the arrest of accused and preparation of arrest memo and personal search memo the accused was brought to the Police Post nor is there any pointing out memo or site plan on record to show where the alleged rape was committed and as such the prosecution has failed to show that rape was committed at the place and in the manner as alleged, is concerned, it is evident from the record that during the crossexamination of PW16 - SI Mahender Pratap IO, the said accused did not voice his concern or raised any apprehension on the aspect regarding which the plea has been raised. He was the only competent witnesses who would have been fully capable of explaining correctly the factual situation.
Moreover, the said discrepancy may reflect upon the investigation but does not reflect upon the substantive evidence and the probative value of the statement made by PW3 - prosecutrix on material and relevant aspects. Nor does it vitiate or negate the case of the prosecution which is otherwise proved on record by clear, cogent and 123 of 136 124 FIR No. 78/11 PS - Shahbad Dairy convincing evidence. The core facts about the committal of the crime by accused has remained intact.
The sight cannot be lost of the fact that PW3 - prosecutrix who was under the total dominance, control, threat and intimidation of the accused, when was overtaken by the events, one is left wandering as to how, in such adverse circumstances, she could be expected to have anticipated the occurrence having an element of surprise and as to how her mental faculties could be expected to be attuned to absorb the details regarding the particulars of the place of incident in jungle. She was not taken for the survey of the jungle by the accused, where the place of incident was situated.
So far as the plea raised by the Learned Counsel for the accused that, PW12 has stated in his crossexamination by the accused that with the Police team PW1 Laddoo Gopal and PW13 (be read as PW3 prosecutrix), went to the place of occurrence with the accused but PW13 has stated in his crossexamination by the accused that no one else accompanied the Police team and the accused to the place of occurrence. Though PW3 claims to have worn the newly purchased suit 124 of 136 125 FIR No. 78/11 PS - Shahbad Dairy over her school uniform yet the school uniform was not seized, is concerned, it is evident from the record that during the cross examination of PW16 - SI Mahender Pratap IO, the said accused did not voice his concern or raised any apprehension on the aspects regarding which the plea has been raised. He was the only competent witnesses who would have been fully capable of explaining correctly the factual situation.
At the cost of repetition, recently in case 'Mahavir Singh Vs. State of Haryana', (2014) 6 SCC 716, the Hon'ble Supreme Court has observed that it is settled legal proposition that in case the question is not put to the witness in crossexamination who could furnish explanation on a particular issue, the correctness or legality of the said fact/issue could not be raised.
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).
125 of 136 126 FIR No. 78/11 PS - Shahbad Dairy In the circumstances, there is no substance in the plea so raised by the Learned Counsel for the accused.
26. Learned Counsel for accused submitted that the claim of the PW3 that she did not try to run away or raise any alarm as she was under
threat is unbelievable in the facts and circumstances as stated by the said PW3 in her deposition and moreso as neither has she or any other witness deposed that the accused was a bad character having any criminal background nor has any such circumstance been shown due to which she could reasonably and genuinely believe in the threat allegedly given by the accused.
I have carefully perused and analysed the evidence on record.
The testimony of PW3 - prosecutrix has been reproduced, discussed and analysed hereinabove. At the cost of repetition, the testimony of PW3 - prosecutrix has been found to be clear, natural, cogent, convincing and inspiring confidence. There is nothing in her 126 of 136 127 FIR No. 78/11 PS - Shahbad Dairy statement to suggest that she had any animus against the accused to falsely implicate him in the case.
At the cost of repetition, on analysing the entire testimony of PW3 - prosecutrix, it transpires that she has described the scenario implicating the accused to be author of the crime, of the committal of the sexual assault upon her. Accused has failed to elicit any material or relevant discrepancies or inconsistencies despite her searching cross examination.
So far as the plea raised by the Learned Counsel for the accused that, the claim of the PW3 that she did not try to run away or raise any alarm as she was under threat is unbelievable in the facts and circumstances as stated by the said PW3 in her deposition, is concerned, the same is found to have no substance in view of the categorical deposition of PW3 - prosecutrix. The sight cannot be lost of the fact that PW3 - prosecutrix who was under the total dominance, threat and control of the accused, 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 and to make an attempt to run away.
127 of 136 128 FIR No. 78/11 PS - Shahbad Dairy It is also to be noticed that PW3 - prosecutrix during her crossexamination has specifically deposed which is reproduced and reads as under : "I did not try to run away nor I raised any alarm as I was under threat."
"I did not try to run away as I was under threat."
Non raising of the hue and cry and non making of an attempt to run away by PW3 - prosecutrix does not falsify the case of the prosecution which is otherwise proved on record by clear, cogent and convincing evidence.
As regards the theory propounded by the Learned Counsel for the accused that, "neither the prosecutrix nor any other witness deposed that the accused was a bad character having any criminal background nor has any such circumstance been shown due to which she could reasonably and genuinely believe in the threat allegedly given by the accused.", is concerned, the said theory, so propounded, 128 of 136 129 FIR No. 78/11 PS - Shahbad Dairy besides being vague has also not at all been made probable much established by any cogent evidence. The testimonies of the prosecution witnesses inclusive of the prosecutrix have been detailed/reproduced, discussed and analysed hereinbefore and have been found to be cogent, convincing and inspiring confidence. At the cost of repetition, PW3 - prosecutrix has described the scenario implicating the accused to be the author of the crime, of the committal of sexual assault upon her. 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.
27. Learned Counsel for the accused submitted that prosecutrix at the instance of her father had made false allegations against accused having raped her as her father had ill will against Mama of accused.
I have carefully perused and analysed the evidence on record.
As regards The theory propounded by the Learned Counsel 129 of 136 130 FIR No. 78/11 PS - Shahbad Dairy for the accused that, "prosecutrix at the instance of her father had made false allegations against accused having raped her as her father had ill will against Mama of accused", is concerned, on careful perusal and analysis of the entire evidence on record, it is found that the said theory, so propounded, besides being vague has also 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
- Ladoo Gopal, father of the prosecutrix during his incisive and lengthy examination. Nor any suggestion regarding the said theory so propounded was put to PW2 - Smt. Baby, mother of the prosecutrix during her incisive and lengthy crossexamination. Moreover, PW3 - prosecutrix during her crossexamination has specifically negated the suggestion that at the instance of her father she had made false allegations against accused about having raped her as her father has ill will against Mama of accused.
It is pertinent to reproduce the relevant part of cross examination of PW3 - prosecutrix, which reads as under : "It is incorrect to suggest that at the instance of my father, I 130 of 136 131 FIR No. 78/11 PS - Shahbad Dairy had made false allegations against accused about having raped me as my father has ill will against Mama of accused..."
In the circumstances, the theory so propounded is found to have no substance and is merely an afterthought and falls flat on the ground.
The sight cannot be lost of the fact that the Indian women has tendency to conceal offence of sexual assault because it involves her prestige as well as prestige of her family. Only in few cases, the victim girl or the family members has courage to go before the Police Station and lodge a case.
Normally a woman would not falsely implicate for the offence of rape at the cost of her character. In Indian society, it is very unusual that a lady with a view to implicate a person would go to the extent of stating that she was raped. [Ref. Madan Lal Vs. State of MP (1997) 2 Crimes 210 (MP)].
131 of 136 132 FIR No. 78/11 PS - Shahbad Dairy The Hon'ble Supreme Court in Para 21 in case Rajinder V. State of H.P. AIR 2009 SC 3022 has interalia held : "21. In the context of Indian Culture, a woman victim of sexual aggression would rather suffer silently than to falsely implicate somebody. Any statement of rape is an extremely humiliating experience for a woman and until she is a victim of sex crime, she would not blame anyone but the real culprit. While appreciating the evidence of the prosecutrix, the Courts must always keep in mind that no selfrespecting woman would put her honour at stake by falsely alleging commission of rape on her and, therefore, ordinarily a look for corroboration of her testimony is unnecessary and uncalled for......."
The Hon'ble Supreme Court in Para 13 in case Om Prakash Vs. State of Uttar Pradesh AIR 2006 SC 2214 has interalia held : "13. It is settled law that the victim of sexual assault is not treated as accomplice and as such, her evidence does not require corroboration from any other evidence including the evidence of a doctor. In a given case even if the doctor who examined the victim does not find sign of rape, it is no ground to disbelieve the sole testimony of the prosecutrix. In normal course a victim of sexual assault does not like to disclose such offence even before her family members much less before public or before the Police. The Indian women has tendency to conceal such offence because it involves her prestige as well as prestige of her family. Only in few cases, the victim girl or the family members 132 of 136 133 FIR No. 78/11 PS - Shahbad Dairy has courage to go before the Police Station and lodge a case......"
In the case of 'Wahid Khan Vs. State of Madhya Pradesh', (2010) 2 SCC 9, the Hon'ble Supreme Court held : "It is a matter of common law that in Indian society any girl or woman would not make such allegations against a person as such she is fully aware of the repercussions flowing therefrom. If she is found to be false, she would be looked by the society with contempt throughout her life. For an unmarried girl, it will be difficult to find a suitable groom. Therefore, unless an offence has really been committed, a girl or a woman would be extremely reluctant even to admit that any such incident had taken place which is likely to reflect on her chastity. She would also be conscious of the danger of being ostracized by the society. It would indeed be difficult for her to survive in Indian society which is, of course, not as forward looking as the western countries are."
In the circumstances, there is no substance in the plea so raised by the Learned Counsel for the accused.
28. Learned Counsel for the accused referred to the cases and are reported as 'Vishnu Sahai @ T. K. Chandra Shekhra vs. State of Maharashtra' 1998 (4) Crimes 69, 'Suresh Babu vs. State of Kerala' 2001 (2) Crimes 88, 'State of Chhatisgarh vs. Dipak Kumar' 2013(1) Crimes 133 of 136 134 FIR No. 78/11 PS - Shahbad Dairy 367, 'Birad Mal Singhvi vs. Anand Purohit' AIR 1988 SC 1796, 'Tameezuddin vs. State (NCT of Delhi)' 2009, 15 SCC 566, 'Alamelu vs. State' (2011) 2 SCC 385, 'Rai Sandeep vs. State (NCT of Delhi)' 2012 , 8 SCC 21, 'Ram Niwas vs. State' in Crl. A. No. 636/1999 decided on 22/08/2014 (DHC).
I have carefully gone through the same. With due respect there is no dispute as to what has been held therein but the same are wholly distinguishable in view of the peculiar facts and nature of evidence adduced in the instant case. In case titled Sunil Kumar Vs. State 181 (2011) DLT 528(DB) it was held that "No case can strictly be a precedent in a criminal matter for the reason no two criminal trials would unfold the same story and the same evidence. Thus, a decision cited pertaining to the destination reached at a particular criminal voyage has to be carefully applied, on a principle of law, in a subsequent voyage".
29. In view of above and in the circumstances, prosecution has thus categorically proved beyond shadows of all reasonable doubts that 134 of 136 135 FIR No. 78/11 PS - Shahbad Dairy on 05/03/2011, at about 8:00 a.m., accused Rakesh Kumar kidnapped PW3 prosecutrix (name withheld), a minor girl, aged around 14 years (To be exact 13 years, 07 months and 12 days) from near Govt. CoEd. Secondary School, Metro Vihar, Delhi, from her legal guardianship without the consent of her parents with intent that she will be seduced to intercourse by him and that after kidnapping the prosecutrix, he took her towards the Jungle of Holambi Kalan and forcibly committed rape upon her without her consent and against her wishes.
I accordingly hold accused Rakesh Kumar guilty for the offences punishable u/s 363/366/376 IPC and convict him thereunder.
30. In view of above discussion, I am of the considered opinion that as far as the involvement of the accused Rakesh Kumar in the commission of the offences u/s 363/366/376 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 Rakesh Kumar beyond shadows of all reasonable doubts and there is no room for hypothesis, consistent with that of innocence of accused. I, therefore, hold accused Rakesh Kumar guilty for the offences 135 of 136 136 FIR No. 78/11 PS - Shahbad Dairy punishable u/s 363/366/376 IPC and convict him thereunder. Announced in the open Court (MAHESH CHANDER GUPTA) on 18th Day of April, 2015 Additional Sessions Judge Special Fast Track Court (N/W District), Rohini, Delhi 136 of 136