Delhi District Court
State vs . 1. Smt. Santosh on 18 February, 2014
1
FIR No. 225/11
PS - Mangol Puri
IN THE COURT OF SH. MAHESH CHANDER GUPTA :
ADDITIONAL SESSIONS JUDGE : SPECIAL FAST TRACK
COURT : NORTHWEST DISTRICT : ROHINI : DELHI
SESSIONS CASE NO. : 99/13
Unique ID No. : 02404R0226692011
State Vs. 1. Smt. Santosh
W/o Late Shri Chotey Lal
R/o I671, Mangol Puri,
Delhi.
2. Ajay (JUVENILE)
S/o Sh. Sarwan Singh
R/o I671, Mangol Puri,
Delhi.
Also at :
V&PO Sekh Pura,
PS - T. P. Nagar,
Meerut, U.P.
FIR No. : 225/11
Police Station : Mangol Puri
Under Sections : 376(2)(f)/506/201 IPC
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FIR No. 225/11
PS - Mangol Puri
Date of committal to session Court : 02/09/2011
Date on which judgment reserved : 14/02/2014
Date on which judgment announced : 18/02/2014
J U D G M E N T
1. Briefly stated the case of the prosecution as unfolded by the report under section 173 Cr.P.C. is as under : That on 15/06/2011 on receipt of DD No. 73B SI Paramjit Singh with W/HC Moorti, Shri Ram Singh @ Ramu, Child prosecutrix (name withheld being a case u/s 376 IPC) and maternal grandmother (nani) of the prosecutrix Sunita reached at SGM Hospital and got the prosecutrix medically examined vide MLC No. 5984/11 and on the said MLC the doctor had endorsed alleged H/o sexual assault at house (I Block Mangol Puri, at 12:00 midnight) and hymen appears fresh torn. The prosecutrix and her father Ram Singh @ Ramu was inquired into by SI Paramjit Singh and after inquiry Ram Singh @ Ramu made the statement which is to the effect that, he lives in a room built at first floor at I671, Mangol Puri, Delhi with his three children prosecutrix (name 2 of 63 3 FIR No. 225/11 PS - Mangol Puri withheld) age 8 years, Hunny age 6 years and Saloni 3 years and does the confectionery (Halwai) work. About 5/6 months back, his wife has expired. On the ground floor of the said house his two bhabhis' Sushma and Smt. Santosh lives with their families. Alongwith Smt. Santosh her brother Ajay also lives. Yesterday, on 14/06/2011, after leaving his three children at home, he left for his work and as the work was much therefore, he could not come to the house in the night. Today on 15/06/2011, in the afternoon when he came to the house, he found her daughter/prosecutrix very silent (gumsum). He asked her daughter/prosecutrix the reason for her sadness. Firstly, her daughter/prosecutrix who looked fearful did not speak anything but on his insistence (jor dene par) her daughter/prosecutrix weepingly told him that, ''in the night at about 12:00 to 1:00 a.m. Mama Ajay came up in the room and firstly saying to Hunny to go and search for her father as much night has set in (kaafi raat ho gayi hai) and her father has not come to the house and sent Hunny out of the house. Then, Ajay mama forcibly made her (daughter/prosecutrix) lie down on the floor and with one hand pressed her mouth and removed her clothes and committed wrong deed (galat kaam) with her and told her if anyone was told about this incident, 3 of 63 4 FIR No. 225/11 PS - Mangol Puri then he will kill her and her brother and sister'' (Raat Ko Kareeb 12:00 - 01:00 Baje Mama Ajay Upar Kamre Mei Aaya Tha Va Usne Pehle Honey Ko Yeh Keh Kar Ki Kafi Raat Ho Gayi Hai Va Tumhare Pitaji Ghar Vapas Nahin Aae Hain Unhe Dhundh Kar Aao, Honey Ko Ghar Se Bahar Bhej Diya Aur Ajay Mama Ne Zabardasti Mujhe Farsh Par Leta Diya Va Ek Haath Se Mera Muh Daba Diya Va Mere Kapde Nikal Diya Va Mere Sath Galat Kaam Kiya Va Kaha Ki Agar Is Bare Mei Kisi Ko Kuch Kaha To Veh Mujhe Aur Mere Bhai Behan Ko Jaan Se Maar Dega). His (complainant Ram Singh) motherinlaw (Sasu Ma) Smt. Sunita had also come to his house and all about the incident was also told by her daughter/prosecutrix to his motherinlaw Smt. Sunita. On which he and his motherinlaw Smt. Sunita have brought the prosecutrix to the Police Station. She (prosecutrix) was sent for medical examination at SGM Hospital with them. Ajay has forcibly committed galat kaam with his minor daughter/prosecutrix and has also threatened her to kill. Legal action be taken against him. The statement has been heard, understood and is correct. From the said statement on finding that offences u/s 376/506 IPC appeared to have been committed, the case was got registered and the investigation was taken by SI Paramjit 4 of 63 5 FIR No. 225/11 PS - Mangol Puri Singh. The sealed exhibits handed over by the concerned doctor after medical examination of the prosecutrix were taken into police possession. NGO Navsrishti was informed and the prosecutrix was got counselled from Najma Counselor of the NGO. Statement of the prosecutrix u/s 164 Cr.P.C. in the question answer form was recorded. Statements of maternal grand mother of the prosecutrix, Smt. Sunita, her mausi Smt. Meena were recorded u/s 161 Cr.P.C. Custody of prosecutrix was handed to her maternal grand mother Smt. Sunita. During the course of investigation at the instance of the complainant site plan was prepared. Accused Ajay was apprehended at the instance of complainant Ram Singh and he was interrogated and after finding sufficient evidence against him he was arrested. His disclosure statement was recorded. He was got medically examined from SGM Hospital vide MLC No. 9653 and the sealed exhibits handed over after medical examination were taken into police possession. On 16/06/2011 statement of prosecutrix u/s 164 Cr.P.C. was got recorded. A detailed report was sent to the child welfare committee. Prosecutrix in her statement u/s 164 Cr.P.C. had stated that her tai Smt. Santosh wife of late Shri Chhote Lal had thrown her blood stained clothes in the MCD 5 of 63 6 FIR No. 225/11 PS - Mangol Puri garbage van (koodewali Gadi). Accused Ajay in his disclosure statement had also stated that his sister (Smt. Santosh) only had thrown the blood stained clothes of the prosecutrix. Section 201 IPC was added in the case against accused Smt. Santosh. On finding sufficient evidence accused Smt. Santosh W/o Late Shri Chhote Lal was arrested on 05/07/2011 for causing disappearance of evidence and she was released on bail on 08/07/2011 by the Court. The sealed exhibits were sent to the FSL.
Upon completion of necessary further investigation challan for the offences u/s 376 (2) (f)/506/201 IPC was prepared against accused Ajay and Smt. Santosh and was sent to the Court for trial.
2. Since the offence U/s 376(2)(f) IPC is exclusive triable by the court of Session, therefore after compliance of the provisions of section 207 Cr.P.C. the case was committed to the court of Session u/s 209 Cr.P.C.
3. Upon committal of the case to the court of Session, after 6 of 63 7 FIR No. 225/11 PS - Mangol Puri hearing on charge, prima facie a case u/s 376(2)(f)/506/201 IPC was made out against accused Ajay and Smt. Santosh. The charge was framed accordingly which were read over and explained to the accused to which they pleaded not guilty and claimed trial.
4. During the proceedings, accused Ajay moved an application for his bone age determination. Inquiry was held by the Learned Predecessor Court and accused Ajay was declared a juvenile vide order dated 31/08/2012 and accordingly his case was separated and was sent to the Juvenile Justice Board (JJB).
5. In support of its case prosecution has produced and examined 15 witnesses. PW1 WHC Murti Devi, PW2 Dr. Rajesh Dalal, CMO SGM Hospital, Delhi, PW3 Smt. Sunita, maternal grandmother of the prosecutrix, PW4 Dr. Hena Kaushar, SR Gynae and OBS SGM Hospital, Mangol Puri, Delhi, PW5 Prosecutrix, PW6 Ram Singh, father of the prosecutrix, PW7 Smt. Meena, Mousi of the prosecutrix, PW8 Constable Sarita Kumari, PW9 Constable Rajpal, PW10 Dr. Shanker Gupta, CMO, Sanjay Gandhi Hospital, Mangol Puri, 7 of 63 8 FIR No. 225/11 PS - Mangol Puri Delhi, PW11 - Sh. Manish Khurana, Learned MM, Rohini Court, Delhi, PW12 - ASI Ved Pal, PW13 - HC Dharamvir, PW14 - Ms. Manisha Upadhyaya, Senior Scientific Officer (Biology), FSL, Rohini, Delhi and PW15 - SI Paramjeet Singh.
6. In brief the witnessography of the prosecution witnesses is as under: PW1 W/HC Murti Devi who deposed that on 15/06/2011, she was posted as W/HC in PS - Mangol Puri. On that day, on receipt of DD No. 73B by the IO, she alongwith the victim, her father and her maternal grand mother reached at SGM Hospital, where victim was got medically examined. IO inquired about the facts from the father of the victim and recorded the statement of Sh. Ram Singh, father of the victim, prepared the rukka and handed over the same to her (PW1) for registration of the case. She took rukka to the Police Station and handed over the same to Duty Officer ASI Ved Pal Sharma. IO recorded her statement.
PW2 Dr. Rajesh Dalal, CMO SGM Hospital, Delhi, who 8 of 63 9 FIR No. 225/11 PS - Mangol Puri deposed that on 15/06/2011 at about 08:05 p.m., patient/prosecutrix (name withheld), aged about 8 years has been brought to the Hospital by L/Constable Murti with alleged history of sexual assault. On her examination vitals were found stable. On local examination there was no fresh external injury found. Patient was referred to Gynae SR for further examination and opinion.
PW3 Smt. Sunita, is the maternal grandmother (Naani) of the prosecutrix who deposed regarding the incident as was disclosed to her by the prosecutrix and deposed on the investigational aspects, she joined and also proved the seizure memo of the sealed samples of the prosecutrix handed over by the doctor after her medical examination Ex. PW3/A. PW4 Dr. Hena Kaushar, SR Gynae and OBS. SGM Hospital, Mangol Puri, Delhi who proved the medical examination of the prosecutrix as was conducted by Dr. Arvind vide MLC No. 5984 Ex. PW4/A and also proved the gyanecological examination as was conducted by her of the prosecutrix Ex. PW 4/B from point 'X' to 'X' on 9 of 63 10 FIR No. 225/11 PS - Mangol Puri the MLC Ex. PW4/A signed by her at point 'A'.
PW5 The prosecutrix, is the victim who deposed regarding the incident and proved her statement recorded u/s 164 Cr.P.C. Ex. PW5/A [also Ex. P1 (Colly.)] signed by her at point 'A'.
PW6 Ram Singh is the father of the prosecutrix who deposed regarding the incident disclosed to him by his daughter/prosecutrix and proved his complaint made to the police Ex. PW6/A signed by him at point 'A' and also proved the site plan Ex. PW 6/B, the arrest memo of accused Ajay (Juvenile) Ex. PW 6/C, his personal search memo Ex. PW6/D signed by him at points A, and deposed that he handed over the Date of birth certificate of her daughter/prosecutrix issued by Delhi Govt. Ex. PW6/E. PW7 Smt. Meena, is the Mousi of the prosecutrix who deposed that on 15/06/2011 she was residing at L606, Mangol Puri, Delhi. On that day her Jeeja Ram Singh telephonically informed her that he was with his daughter/prosecutrix (name withheld) at Sanjay Gandhi 10 of 63 11 FIR No. 225/11 PS - Mangol Puri Hospital and Ajay has committed wrong act with prosecutrix (name withheld) and she was brought to Sanjay Gandhi Hospital for medical examination. She (Smt. Meena) went to Sanjay Gandhi Hospital and met prosecutrix (name withheld) who was weeping and told her that in the night at about 12:001:00 a.m. her Mama Ajay came into the room and sent away her brother Honey on the pretext of searching her father and thereafter forcefully made her lying on the floor and after putting of her clothes committed rape with her and also threatened her with the death of her brother and sister. Prosecutrix (name withheld) was thereafter taken for medical examination. Her (PW7) statement was recorded.
PW8 Constable Sarita Kumari who deposed that on 05/07/2011, he was posted at PS - Mangol Puri and on that day he joined the investigation in this case with SI Param Jeet Singh and went in search of accused Smt. Santosh present in the Court (witness correctly identified the accused) at I671, Mangol Puri and found the same locked and thereafter reached at her sister's house at YBlock. The accused Santosh was arrested there vide arrest memo Ex. PW8/A which bears her (PW8) signature at point 'A' and her personal search was carried out 11 of 63 12 FIR No. 225/11 PS - Mangol Puri vide memo Ex. PW8/B which bears her signature at point 'A'. The accused Santosh made disclosure statement, the same is Ex. PW8/C and bears her signature at point 'A'. The accused was produced before the Learned MM at Rohini and was sent to JC.
PW9 Constable Rajpal, who deposed that on 15/06/2011, he was posted at PS - Mangol Puri. On that day, on the instructions of the Duty Officer he took the copy of FIR and original endorsement to Sanjay Gandhi Hospital and handed over to SI Paramjit Singh and thereafter he joined the investigation of this case with him. He accompanied the IO alongwith Ram Singh, father of child/prosecutrix (name withheld) to the spot i.e. I671, Mangol Puri where at the instance of Ram Singh, IO prepared the site plan. They thereafter in search of accused reached near Masjid YBlock near Park and on the identification of Ram Singh, accused Ajay, not present in the Court (since juvenile) was apprehended. He was arrested and his personal search was carried out vide memo already Ex. PW6/C and Ex. PW6/D, respectively. The disclosure statement of accused Ajay was recorded. Same is Ex. PW9/A. Accused was medically examined at Sanjay Gandhi Hospital 12 of 63 13 FIR No. 225/11 PS - Mangol Puri and Doctor had handed over three sealed pullindas after the medical examination of accused Ajay alongwith one sample seal and the same had been taken into possession (seizure memo not bears the signature of the witness). They thereafter returned to the Police Station and his statement was recorded.
PW10 Dr. Shanker Gupta, CMO, Sanjay Gandhi Hospital, Mangol Puri, Delhi who deposed that on 16/06/2011, he was posted at SGM Hospital, Mangol Puri as CMO. On that day, he medically examined Ajay, Male, 20 years brought for medical examination as accused in case of sexual assault and he medically examined him vide MLC Ex. PW10/A. Same is in his handwriting and bears his signature at point 'A'. He opined after medical examination that nothing to suggest that patient Ajay was incapable of doing sexual activity. Blood sample, underwear and pubic hairs were sealed and handed over to the IO. The semen sample could not be collected as Ajay was not able to produce the same.
PW11 - Sh. Manish Khurana, Learned MM, Rohini Court, 13 of 63 14 FIR No. 225/11 PS - Mangol Puri Delhi who deposed that on 16/06/2011, he was posted as MM/Duty MM in Rohini Courts. On that day, an application was moved by SI Paramjit Singh for recording statement u/s 164 Cr.P.C. of girl/prosecutrix (name withheld) D/o Ram Singh. The witness was identified by SI Paramjit Singh and his statement was recorded in this regard. Before recording the statement, he put certain questions to the witness to ascertain her state of mind and her voluntariness and after satisfying himself that she was making the statement voluntarily, he proceeded to record her statement. Her proceedings in this regard is Ex. P1 bearing his signature at point 'X' and the statement of prosecutrix (name withheld) recorded by him is already Ex. PW5/A bearing his signature at point 'X'. After recording the statement, he gave the certificate Ex. PW11/A bearing his signature at point 'A' and thereafter, the statement was ordered to be sent in a sealed envelope vide his endorsement Ex. PW11/B bearing his signature at point 'A'. He allowed the copy of the statement be given to the IO, on his (IO) application vide his order Ex. PW11/C bearing his signature at point 'A'.
PW12 - ASI Ved Pal who deposed that on 15/06/2011 he 14 of 63 15 FIR No. 225/11 PS - Mangol Puri was posted as Duty Officer in PS - Mangol Puri and was on duty from 5:00 p.m. to 1:00 a.m. midnight. On that day, at about 11:00 p.m. he received a rukka through HC Murti Devi which was sent by SI Paramjeet Singh, on the basis of which and on his instructions the present FIR No. 225/11 u/s 376/506 IPC was registered and after registration of FIR, he handed over the copy of FIR and original rukka to HC Murti Devi for handing over the same to SI Paramjeet Singh. He has brought the original FIR Register. The copy of FIR is already exhibited as Ex. P2. On the same day DD No. 73B was also lodged in PS - Mangol Puri and the copy of the same is Ex. PW12/A. PW13 - HC Dharamvir who deposed that on 15/06/2011 he was posted as MHC(M) in PS - Mangol Puri. On that day, SI Paramjeet deposited four sealed pullindas alongwith sample seal in the Malkhana. He (PW13) made entry at Serial No. 5042 of Register No. 19. On 27/07/2011 on the instructions of IO, abovesaid sealed pullindas alongwith sample seal were handed over to HC Deshraj for depositing in the FSL, Rohini vide RC No. 94/21/11. After depositing the same in FSL, he had deposited the acknowledgment receipt of the pullinda with 15 of 63 16 FIR No. 225/11 PS - Mangol Puri him (PW13). He has brought the Register No. 19 and 21. The copy of the relevant entry of register no. 19 is Ex. PW13/A. The copy of relevant entry of Register No. 21 is Ex. PW13/B. Copy of the acknowledgment receipt is Ex. PW13/C (OSR). Sealed pullindas remained intact during his custody.
PW14 - Ms. Manisha Upadhyaya, Senior Scientific Officer (Biology), FSL, Rohini, Delhi who proved the biological and serological reports Ex. PW14/A and Ex. PW14/B respectively signed by her at points 'A'.
PW15 - SI Paramjeet Singh who deposed that on 15.06.2011, he was posted as Sub Inspector in PS Mangol Puri. On that day, he received DD No. 73B, the copy of which is already Ex. PW 12/A. Complainant Ram Singh @ Ramu, victim/prosecutrix, aged around 08 years and maternal grand mother (naani) of the prosecutrix also met him in the Police Station. Thereafter, he alongwith W/HC Murti Devi, Complainant Ram Singh @ Ramu, victim/prosecutrix and maternal grand mother (naani) of the prosecutrix reached Sanjay Gandhi 16 of 63 17 FIR No. 225/11 PS - Mangol Puri Hospital. Prosecutrix was medically examined and after medical examination, Doctor handed over the sealed pullindas containing the exhibits which were seized vide memo Ex. PW3/A, bearing his signature at point 'B'. He recorded the statement of Ram Singh which is already exhibited as Ex. PW6/A and attested his signature at point 'A', bearing his (PW15) signature at point 'X'. He prepared rukka Ex. PW15/A, bearing his signature at point 'A' and the same was handed over to W/HC Murti Devi for registration of FIR. NGO was called and counseling of the prosecutrix was got done. Prosecutrix was handed over to her Maternal Grand Mother. Constable Raj Pal came in the Hospital and handed over to him (PW15) the copy of FIR and original rukka. Thereafter, he (PW15) alongwith Ram Singh and Constable Raj Pal reached at the spot i.e. I671, 1st Floor, Mangol Puri and prepared the site plan Ex. PW6/B at the instance of Ram Singh bearing his signature at point 'A'. Thereafter, they searched accused Ajay and reached at Park near Y Block Nursery and from there at the instance of complainant they apprehended juvenile Ajay vide arrest memo Ex. PW6/C at about 1:15 a.m. (midnight on 16/06/2011) and his personal search was conducted vide memo Ex. PW6/D. He made disclosure statement Ex.
17 of 63 18 FIR No. 225/11 PS - Mangol Puri PW9/A, bearing his (PW15) signature at point 'B'. Accused/juvenile Ajay was medically examined and after medical examination, Doctor handed over the sealed pullinda containing exhibits which were seized and taken into possession vide memo Ex. PW15/B, bearing his signature at point 'A'. Thereafter, they came back to Police Station and accused was sent to lockup and case property was deposited in the Malkhana. He recorded the statement of witnesses. Thereafter, accused Ajay was produced in the Court and he was sent to JC. Prosecutrix alongwith her maternal grand mother called and he (PW15) moved an application Ex. PW15/C, bearing his signature at point 'A' for recording the statement of the prosecutrix u/s 164 Cr.P.C. and thereafter her statement was recorded. He obtained the copy of the statement vide his application Ex. PW15/D, bearing his signature at point 'A'. In view of the statement of prosecutrix, Section 201 IPC was added against accused Smt. Santosh. He searched for Smt. Santosh but not found. On 05/07/2011, he alongwith Lady Constable Sarita reached at I671, Mangol Puri in search of accused Smt. Santosh and from inquiry they came to know that she is present at the house of her sister in Y Block. Thereafter, they reached at Y Block and from there, accused Smt. Santosh, present in the Court 18 of 63 19 FIR No. 225/11 PS - Mangol Puri was apprehended. She was interrogated and arrested vide arrest memo Ex. PW8/A. Her personal search was conducted vide memo Ex. PW8/B, bearing his signature at point 'B'. Accused Smt. Santosh was produced in the Court and was sent to JC. On 18/07/2011 exhibits were sent to FSL. After completing the investigation, challan was prepared and filed in the Court. During the Court proceedings, accused Ajay was declared Juvenile and his separate charge sheet was filed in the JJB and he is facing trial before JJB.
The testimonies of the prosecution witnesses shall be dealt with in detail during the course of appreciation of evidence.
7. It is also to be mentioned on 20/12/2012, Learned Counsel for the accused had admitted statement u/s 164 Cr.P.C. and FIR and the same are Ex. P1 (colly.) and Ex. P2 before the Learned Predecessor Court.
8. Statement of accused Smt. Santosh was recorded u/s 313 Cr.P.C. wherein she pleaded innocence and false implication and did not 19 of 63 20 FIR No. 225/11 PS - Mangol Puri opt to lead any defence evidence.
9. Learned Counsel for the accused submitted that there is contradiction on the aspect of disposal of the undergarments of the prosecutrix. He submitted that PW3 - Smt. Sunita, Naani of the prosecutrix in her statement has stated that prosecutrix (name withheld) told her that the clothes which she was wearing at the time of incident were "got burnt" by her Tayi Santosh present in the Court. The statement of this witness has been got confronted with the statement made by her to the Police which is Ex. PW3/DA where the burning of clothes by Santosh is not recorded.
He further submitted that PW5 - prosecutrix in her examinationinchief has stated that "I kept my blood stained clothes where we used to keep our utensils. In the morning my brother gave them to garbage collector thinking them to be garbage." This witness has been declared hostile and has been crossexamined by the Learned Addl. PP but nothing useful material has come out in the cross examination. During her crossexamination by Learned Addl. PP, she has stated "My brother Harsh told me that he had thrown the dirty 20 of 63 21 FIR No. 225/11 PS - Mangol Puri clothes in the garbage van."
He further submitted that PW6 - Ram Singh in his statement has stated "I cannot tell as to what happened to the clothes of my daughter."
He further submitted that as per PW4 - Dr. Hena Kausar, the prosecutrix has told to her about the undergarments which were soaked with blood, which were thrown away by the accused's sister in the morning.
Learned Counsel for the accused submitted that prosecution has failed to prove its case and prayed for the acquittal of the accused Smt. Santosh on the charge levelled against her.
10. While the Learned Addl. PP for the State, on the other hand, submitted that the testimonies of the prosecution witnesses are cogent and consistent and the contradictions and discrepancies as pointed out are minor and not the material one's and do not affect the credibility of the witnesses and the prosecution has proved its case beyond reasonable doubt.
21 of 63 22 FIR No. 225/11 PS - Mangol Puri
11. I have heard the Learned Addl. PP for the state and Sh. Rajesh Juneja, the Learned Counsel for the accused Smt. Santosh and have also carefully perused the entire record.
12. The charge for the offences punishable u/s 376(2)(f)/506 IPC against accused Ajay (since declared as juvenile vide order dated 31/08/2012) is that on the intervening night of 1415/06/2011 at about 12 mid night within the jurisdiction of PS - Mangol Puri, he committed rape upon the baby/prosecutrix (name withheld) aged about eight years and also threatened to kill her brother and sisters and the charge for the offence punishable u/s 201 IPC against accused Smt. Santosh is that on the above date, time and place she (had) thrown blood stained clothes of prosecutrix (name withheld) in a garbage vehicle and thus caused to disappear the evidence, to screen the offender.
13. It is to be mentioned that as a matter of prudence, in order to avoid any little alteration in the spirit and essence of the depositions of the material witnesses, during the process of appreciation of evidence at some places their part of depositions have been reproduced, in the 22 of 63 23 FIR No. 225/11 PS - Mangol Puri interest of justice.
AGE OF THE PROSECUTRIX
14. PW6 - Ram Singh, father of PW5 - prosecutrix has deposed in his examinationinchief that he handed over the date of birth certificate of his daughter prosecutrix, issued by Delhi Government Ex. PW6/E. The perusal of the date of birth certificate Ex. PW6/E of the prosecutrix shows that her date of birth as 03/12/2002 is mentioned therein.
There is nothing in the crossexamination of PW6 - Ram Singh so as to impeach his creditworthiness. Nor any evidence to the contrary has been produced or proved on record on behalf of the accused.
In the circumstances, it stands proved on the record that the date of birth of PW5 - prosecutrix is 03/12/2002.
As the date of alleged incident is the intervening night of 1415/06/2011 and the date of birth of the prosecutrix is 03/12/2002, on 23 of 63 24 FIR No. 225/11 PS - Mangol Puri simple arithmetical calculation, the age of prosecutrix comes to 08 years, 06 months and 11 days as on the date of incident on the intervening night of 1415/06/2011.
In view of above and in the circumstances, it stands established on record that PW5 prosecutrix was aged 08 years, 06 months and 11 days as on the date of incident on the intervening night of 1415/06/2011.
MEDICAL EVIDENCE OF THE PROSECUTRIX
15. PW2 Dr. Rajesh Dalal, CMO SGM Hospital, Delhi, who deposed that on 15/06/2011 at about 08:05 p.m., patient/prosecutrix (name withheld), aged about 8 years has been brought to the Hospital by L/Constable Murti with alleged history of sexual assault. On her examination vitals were found stable. On local examination there was no fresh external injury found. Patient was referred to Gynae SR for further examination and opinion.
PW4 Dr. Hena Kaushar, SR Gynae and OBS. SGM Hospital, Mangol Puri, Delhi who proved the medical examination of the 24 of 63 25 FIR No. 225/11 PS - Mangol Puri prosecutrix as was conducted by Dr. Arvind vide MLC No. 5984 Ex. PW4/A and also proved the gyanecological examination as was conducted by her of the prosecutrix Ex. PW 4/B from point 'X' to 'X' on the MLC Ex. PW4/A signed by her at point 'A'.
PW4 - Dr. Hena Kaushar in her examinationinchief has deposed which is reproduced and reads as under : "On 15/06/2011, at about 8:05 p.m. patient/prosecutrix (name withheld) aged about 08 years D/o Ram Singh was brought to SGM Hospital by Lady Head Constable Murti who was examined by Dr. Arvind at casualty vide MLC No. 5984. The same is Ex. PW4/A. After examining the patient/prosecutrix (name withheld) was referred to SR, Gynae.
On the very same day at about 9:00 p.m. I examined prosecutrix (name withheld) with the alleged history of sexual assault at her home by a relative Ajay. According to patient accused has forcefully done sexual intercourse followed by bleeding per vagina. According to victim her undergarments were soaked with blood which was thrown away by accused's sister in morning. Patient took bath after the incident and came at around 2022 hours after the incident for examination.
Patient not attended menarche yet (Mensuration). During local examination no injury mark. Labia separated gently with fingers, hymen appears fresh torn (inflamed and red). No bleeding per vagina present.
Per vaginal examination : one finger insuinated easily inside vagina. But uterus size could not be assessed because patient was very uncooperative due to pain.
25 of 63 26 FIR No. 225/11 PS - Mangol Puri After examination following samples were seized.
1. Right vulval swab.
2. Left vulval swab.
3. Anterior vaginal wall swab.
4. Posterior vaginal wall swab.
5. Right lateral vaginal wall swab.
6. Left lateral vaginal wall swab.
7. Right hand nails scraping.
8. Left hand nails scraping.
9. Blood for grouping (Plain vial).
10. Blood for drug and alcohal (EDTA vial).
All the samples were seal (sealed) with the seal of SGM Hospital and handed over to IO alongwith sample seal.
My examination on Ex. PW4/A is PW4/B which is from point 'X' to 'X' and bears my signature a point 'A'."
Despite grant of opportunity PW2 - Dr. Rajesh Dalal and PW4 - Dr. Hena Kaushar were not crossexamined on behalf of the accused.
In view of above and in the circumstances, the medical examination and the gynaecological examination of PW5 - prosecutrix vide MLC Ex. PW4/A and Ex. PW4/B from point 'X' to 'X' on the MLC Ex. PW4/A stands proved on the record.
26 of 63 27 FIR No. 225/11 PS - Mangol Puri VIRILITY OF THE ACCUSED AJAY (JUVENILE)
16. PW10 Dr. Shanker Gupta, CMO, Sanjay Gandhi Hospital, Mangol Puri, Delhi who deposed that on 16/06/2011, he was posted at SGM Hospital, Mangol Puri as CMO. On that day, he medically examined Ajay, Male, 20 years brought for medical examination as accused in case of sexual assault and he medically examined him vide MLC Ex. PW10/A. Same is in his handwriting and bears his signature at point 'A'. He opined after medical examination that nothing to suggest that patient Ajay was incapable of doing sexual activity. Blood sample, underwear and pubic hairs were sealed and handed over to the IO. The semen sample could not be collected as Ajay was not able to produce the same.
Despite grant of opportunity, DW10 - Dr. Shanker Gupta was not crossexamined on behalf of accused.
In view of above and in the circumstances, it stands proved on the record that accused Ajay (Juvenile) was capable of performing any sexual activity.
27 of 63 28 FIR No. 225/11 PS - Mangol Puri BIOLOGICAL AND SEROLOGICAL EVIDENCE
17. PW14 - Ms. Manisha Upadhyaya, Senior Scientific Officer (Biology), FSL, Rohini, Delhi has proved the biological and serological reports Ex. PW14/A and Ex. PW14/B respectively signed by her at points 'A'.
As per biological report Ex. PW14/A the description of articles contained in parcel and result of analyses reads as under : DESCRIPTION OF ARTICLES CONTAINED IN PARCEL Parcel '1' : One sealed cloth envelope sealed with the seal of "SGMH GNCT DELHI" containing exhibits '1a', '1b', '1c', '1d', '1e', '1f', '1g', '1h', '1i' and '1j' each in a sealed cloth of "SGMH GNCT DELHI".
Exhibit '1a' : Cotton wool swab on a stick kept in a tube, described as 'Vulval swab'.
Exhibit '1b' : Cotton wool swab on a stick kept in a tube, described as 'Vulval swab'.
Exhibit '1c' : Cotton wool swab on a stick kept in a tube, described as 'Anti Vaginal wall swab'.
Exhibit '1d' : One cotton wool swab on a stick kept in a tube, described as 'Post Vaginal wall swab'.
Exhibit '1e' : Dirty cotton wool swab on a stick kept in a tube, described as 'Rt. Lateral vaginal wall Swab'. Exhibit '1f' : Dirty cotton wool swab on a stick kept in a tube, 28 of 63 29 FIR No. 225/11 PS - Mangol Puri described as 'Lt. Lateral vaginal wall Swab'. Exhibit '1g' : Cotton wool swab on a stick kept in a tube, described as 'Rt. hand nail scraping'.
Exhibit '1h' : Cotton wool swab on a stick kept in a tube, described as 'Lt. hand nail scraping'.
Exhibit '1i' : Dark brown foul smelling liquid kept in a tube described as 'Blood for grouping'.
Exhibit '1j' : Send in original to Chemistry Division for 'drug or alcohol examination' Parcel '2' : One sealed cloth parcel sealed with the seal of "SGMH MANGOL PURI DELHI" containing exhibit '2'. Exhibit '2' : Dark brown foul smelling liquid kept in a tube described as 'Blood sample'.
Parcel '3' : One sealed cloth parcel sealed with the seal of "SGMH MANGOL PURI DELHI" containing exhibit '3'.
Exhibit '3' : Few strands of hair. Parcel '4' : One sealed cloth parcel sealed with the seal of
"SGMH MANGOL PURI DELHI" containing exhibit '4'.
Exhibit '4' : One dirty underwear.
RESULT OF ANALYSIS
1. Blood was detected on exhibits '1c', '1e', '1f', '1g', '1h', '1i' and '2'.
2. Blood could not be detected on exhibits '1a', '1b' and '1d'.
29 of 63 30 FIR No. 225/11 PS - Mangol Puri
3. Semen could not be detected on exhibits '1a', '1b', '1c', '1d', '1e', '1f', '1g', '1h', '3' and '4'.
4. Report of serological analysis in original is attached herewith. NOTE :
1. Regarding query no. '5', Report in original from Chemistry Division will be furnished separately.
2. Remnants of the exhibits have been sealed with the seal of 'FSL MU DELHI'.
The serological report Ex. PW14/B reads as under: Exhibits Species of origin ABO Grouping/Remarks '1c' Cotton wool swab Human No reaction '1e' Cotton wool swab Human No reaction '1f' Cotton wool swab Human No reaction '1g' Cotton wool swab Human No reaction '1h' Cotton wool swab Human No reaction '1i' Blood sample Sample blood putrefied hence no opinion '2' Blood sample Sample blood putrefied hence no opinion On careful perusal and analysis of the biological and serological evidence on record, it clearly shows that blood was detected 30 of 63 31 FIR No. 225/11 PS - Mangol Puri on exhibit '1c' (Anti Vaginal Wall Swab of prosecutrix), exhibit '1e' (Rt. Lateral Vaginal Wall Swab of prosecutrix), exhibit '1f' (Rt. Lateral Vaginal Wall Swab of prosecutrix), exhibit '1g' (Rt. Hand Nail Scraping of prosecutrix), exhibit '1h' (Lt. Hand Nail Scraping of prosecutrix), exhibit '1i' (Blood for grouping of prosecutrix) and exhibit '2' (Blood Sample of accused Ajay); blood could not be detected on exhibit '1a' (Vulval Swab of the prosecutrix), exhibit '1b' (Vulval Swab of the prosecutrix) and exhibit '1d' (Post Vaginal Wall Swab of the prosecutrix) and semen could not be detected on exhibit '1a' (Vulval Swab of the prosecutrix), exhibit '1b' (Vulval Swab of the prosecutrix), exhibit '1c' (Anti Vaginal Wall Swab of the prosecutrix), exhibit '1d' (Post Vaginal Wall Swab of the prosecutrix), exhibit '1e' (Rt. Lateral Vaginal Wall Swab of the prosecutrix), exhibit '1f' (Lt. Lateral Vaginal Wall Swab of the prosecutrix), exhibit '1g' (Rt. Hand Nail Scraping of prosecutrix), exhibit '1h' (Lt. Hand Nail Scraping of prosecutrix), exhibit '3' (Few Strands of hair of accused Ajay) and exhibit '4' (underwear of accused Ajay). As per the serological report Ex. PW14/B blood was of Human origin on exhibits '1c' (Anti Vaginal Wall Swab of prosecutrix), exhibit '1e' (Rt. Lateral Vaginal Wall 31 of 63 32 FIR No. 225/11 PS - Mangol Puri Swab of prosecutrix), exhibit '1f' (Rt. Lateral Vaginal Wall Swab of prosecutrix), exhibit '1g' (Rt. Hand Nail Scraping of prosecutrix) and exhibit '1h' (Lt. Hand Nail Scraping of prosecutrix). 'Sample was putrefied hence no opinion' could be given on the exhibit '1i' (Blood Sample of prosecutrix) and exhibit '2' (Blood Sample of accused Ajay).
As per the biological report Ex. PW14/A, with regard to the description of the articles/exhibits contained in the parcels, it is noticed that Parcel No. 1 belongs to PW5 prosecutrix which was seized vide seizure memo Ex. PW3/A dated 15/06/2011 and Parcel Nos. 2, 3 & 4 belong to the accused Ajay (Juvenile) which were seized vide seizure memo Ex. 15/B dated 16/06/2011.
As per the biological report Ex. PW14/A, prosecution has discharged its initial burden of proving the presence of blood on exhibit '1c' (Anti Vaginal Wall Swab of prosecutrix seized vide memo Ex. 3/A), exhibit '1e' (Rt. Lateral Vaginal Wall Swab of prosecutrix seized vide memo Ex. 3/A), exhibit '1f' (Rt. Lateral Vaginal Wall Swab of prosecutrix seized vide memo Ex. 3/A), exhibit '1g' (Rt. Hand Nail Scraping of prosecutrix seized vide memo Ex. 3/A), 32 of 63 33 FIR No. 225/11 PS - Mangol Puri exhibit '1h' (Lt. Hand Nail Scraping of prosecutrix seized vide memo Ex. 3/A).
Since accused Ajay was declared a juvenile vide order dated 31/08/2012 and accordingly his case was separated and was sent to the Juvenile Justice Board therefore, no further discussion is made on this aspect.
18. It is to be noticed in case "Rameshbhai Mohanbhai & Ors. Vs. State of Gujrat" 2010 XI AD (S.C.) 53, the Hon'ble Supreme Court held that : "It is settled legal proposition that the evidence of a prosecution witness cannot be rejected in toto merely because the prosecution chose to treat him as hostile and crossexamined him. The evidence of such witnesses cannot be treated as effaced or washed off the record altogether but the same can be accepted to the extent that their version is found to be dependable on a careful scrutiny thereof. [Vide Bhagwan Singh Vs. State of Haryana 1976 SCC (Cri) 7, Rabindra Kumar Dey Vs. State of Orissa 1976 SCC (Cri) 566, Syad Akbar Vs. State of Karnataka 1980 SCC (Cri) 59 and Khujji Vs. State of M.P. 1991 SCC (Cri) 916] In State of U.P. Vs. Ramesh Prasad Misra 1996 SCC (Cri) 1278, this Court held that evidence of a hostile witness would not be totally rejected if spoken in favour of the prosecution or the accused but 33 of 63 34 FIR No. 225/11 PS - Mangol Puri required to the subjected to close the prosecution or defence can be relied upon. A similar view has been reiterated by this Court in Balu Sonba Shinde Vs. State of Maharashtra 2002 VII AD (S.C.) 249 = 2003 SCC (Cri) 112, Gagan Kanojia Vs. State of Punjab (2008) 1 SCC (Cri) 109, Radha Mohan Singh Vs. State of U.P. 2006 I AD (S.C.) 417 = (2006) 1 SCC (Cri) 661, Sarvesh Narain Shukla Vs. Daroga Singh (2009) 1 SCC (Cri) 188 and Subbu Singh Vs. State (2009) 2 SCC (Cri) 1106."
In a criminal prosecution when a witness is crossexamined and contradicted with the leave of the Court, by the party calling him, his evidence cannot, as a matter of law, be treated as washed off the record altogether. It is for the Judge to consider the fact in each case whether as a result of such examination and contradiction, the witness stands thoroughly discreted or can still be believed in regard to a part of his testimony. If the Judge finds that in the process, the credit of the witness has not been completely shaken, he may, after reading and considering the evidence of the witness, as a whole, with due caution and care, accept, in the light of the other evidence on the record, that part of his testimony which he finds to be creditworthy and act upon it. If in a given case, the whole of the testimony of the witness is impugned and in the process, the witness stands squarely and totally discredited the Judge should, as a matter of prudence, discard his evidence in toto ; (Ref. Pandappa Hanumappa Nanamar V. State of Karnataka, (1997) 3 Supreme Today 63).
Evidence of a prosecution witness cannot be rejected in India merely because the prosecution chose to treat him as hostile and crossexamine him. Evidence of such witness cannot be treated as 34 of 63 35 FIR No. 225/11 PS - Mangol Puri effaced or washed off the record altogether but the same can be accepted to the extent his version is found to be dependable or careful scrutiny thereof ; (Ref. Prithi Vs. State of Haryana, (2010) 8 SCC 536).
The fact that witnesses have been declared hostile does not result in automatic rejection of their evidence. Even the evidence of a hostile witness if it finds corroboration from the facts of the case may be taken into account while judging the guilt of an accused ; (Ref. Lalla Srinivasa Rao Vs. State of Andhra Pradesh, AIR 2004 SC 1720).
In case 'Himanshu @ Chintu Vs. State (NCT of Delhi)', (2011) 2 SCC 36, the Hon'ble Supreme Court held that the dependable part of the evidence of a hostile witness can be relied on. Thus it is the duty of the Court to separate the grain from the chaff and the maxim falsus in uno falsus in omnibus, has no application in India vide 'Nisar Alli Vs. The State of Uttar Pradesh', AIR 1957 SC 366.
19. Now, let the testimonies of PW5 - Prosecutrix, PW3 - Smt. Sunita, her maternal grand mother (Nani) and PW6 - Ram Singh, her father be perused and analysed.
The testimony of PW5 - prosecutrix was recorded by the 35 of 63 36 FIR No. 225/11 PS - Mangol Puri Learned Predecessor Court, keeping in view her age and after asking some preliminary questions for ascertaining her state of mind and her voluntariness and after being satisfied about her competency, her statement was recorded without oath.
PW5 - prosecutrix D/o Shri Ram Singh, R/o 1/671, Mangol Puri, Delhi in her examinationinchief has deposed which is reproduced and reads as under : "I live with my father at Mangol Puri on the above said address. My mother had expired. My brother Harsh and my sister Saloni also lived with me. Harsh is 7 years old and Saloni is 3 years old. My Taayi Santosh and her children used to live in the same building with us. We lived on the first floor and my Taayi was living on ground floor. One Ajay brother of Taayi also used to live there. My father is Halwai and works on contract basis. Sometimes he used to stay overnight because of his work. On day in the night time, I was on the first floor and my father had gone for his work. Ajay (Juvenile), brother of my Taayi came to the first floor and started doing Gandi Harkatey. At that time, my Taayi, present in the Court today (correctly identified) was living on the ground floor. My brother Harsh was sleeping and at that time, I was watching TV with my sister Saloni. As I was waiting for my father so the door was not locked. Accused Ajay after coming in the room sat with us and he also watched TV. After some time my younger sister slept and I was also preparing to sleep but accused Ajay started doing Gandi Harkatey with me. Thereafter, accused Ajay caught hold of my hand and lay me on the bed of my father and thereafter, he lied upon 36 of 63 37 FIR No. 225/11 PS - Mangol Puri me. But he had not taken off my clothes and his clothes. After some time accused had removed my clothes and also removed his clothes. Accused Ajay inserted his penis into my vagina (Meri Susu Wali Jagah Me Apni Susu Wali Jagah Daal Di Thi). I started bleeding and my clothes were got blood stained. I kept my blood stained clothes where we used to keep our utensils. In the morning my brother gave them to garbage collector thinking them to be garbage. In the morning, my Taayi had gone for her work. I had complained about the acts of Ajay to Kanchan, daughter of my Taayi who took Ajay downstairs. I have told about my clothes to Kanchan. Kanchan told about the incident to my Taayi in the night itself when she returned from her work at about 9:00 p.m. Kanchan had told to my Taayi about my blood stained clothes in the night itself. My Taayi had not made any enquiry from me regarding the wrong act done by accused Ajay. I narrated the entire incident to my Taayi in the night itself and about my blood stained clothes. My Taayi did not show any sympathy towards me or she reprimanded accused Ajay nor she asked from me about my clothes.
My clothes were consisted of Salwar and Kamiz. My father came back in the morning and I informed him about the incident. My Naani also came in the morning and she also informed about the incident. I went to Police Station alongwith them and my father lodged the complaint with Police. I was got medically examined and thereafter, I was produced before Learned MM who recorded my statement u/s 164 Cr.P.C. Same is Ex. PW5/A bearing my signature at point 'A'."
PW5 - Prosecutrix was also crossexamined by the Learned Addl. PP for the State as she was resiling from her previous statement 37 of 63 38 FIR No. 225/11 PS - Mangol Puri made before the Learned MM. The crossexamination as conducted by the Learned Addl. PP for the State reads as under : "I had deposed truly and correctly before Learned MM. It is correct that I had stated before Learned MM that Santosh had thrown my dirty clothes in the garbage van. It is incorrect to suggest that my Taayi Santosh had asked me to sleep with accused Ajay. Confronted with statement Ex. PW5/A from point 'A' to 'A' where it is so recorded. It is correct that my Taayi Santosh had asked me not to disclose the incident to anyone. It is incorrect to suggest that I am confused about the fact regarding throwing of my dirty clothes in Garbage Van. My brother Harsh had told me that he had thrown the dirty clothes in the Garbage Van. I cannot say whether my brother had told a lie to me that he had thrown the clothes but actually the clothes were thrown by my Taayi Santosh."
From the aforesaid narration of PW5 - prosecutrix, it is clear that she lives with her father at Mangol Puri on the above said address. Her mother had expired. Her brother Harsh and her sister Saloni also lived with her. Harsh is 7 years old and Saloni is 3 years old. Her Taayi Smt. Santosh and her children used to live in the same building with them. They lived on the first floor and her Taayi was living on ground floor. One Ajay brother of Taayi also used to live there. Her father is Halwai and works on contract basis. Sometimes he used to stay overnight because of his work. On day in the night time, she was on 38 of 63 39 FIR No. 225/11 PS - Mangol Puri the first floor and her father had gone for his work. Ajay (Juvenile), brother of her Taayi came to the first floor and started doing Gandi Harkatey. At that time, her Taayi, present in the Court (correctly identified) was living on the ground floor. Her brother Harsh was sleeping and at that time, she was watching TV with her sister Saloni. As she was waiting for her father so the door was not locked. Accused Ajay after coming in the room sat with them and he also watched TV. After some time her younger sister slept and she was also preparing to sleep but accused Ajay started doing Gandi Harkatey with her. Thereafter, accused Ajay caught hold of her hand and lay her on the bed of her father and thereafter, he lied upon her. But he had not taken off her clothes and his clothes. After some time accused had removed her clothes and also removed his clothes. Accused Ajay inserted his penis into her vagina. She started bleeding and her clothes were got blood stained. She kept her blood stained clothes where they used to keep their utensils. In the morning her brother gave them to garbage collector thinking them to be garbage. In the morning, her Taayi had gone for her work. She had complained about the acts of Ajay to Kanchan, daughter of her Taayi who took Ajay downstairs. She had told about her clothes to 39 of 63 40 FIR No. 225/11 PS - Mangol Puri Kanchan. Kanchan told about the incident to her Taayi in the night itself when she returned from her work at about 9:00 p.m. Kanchan had told to her Taayi about her blood stained clothes in the night itself. Her Taayi had not made any enquiry from her regarding the wrong act done by accused Ajay. She narrated the entire incident to her Taayi in the night itself and about her blood stained clothes. Her Taayi did not show any sympathy towards her or she reprimanded accused Ajay nor she asked from her about her clothes. Her clothes were consisted of Salwar and Kamiz. Her father came back in the morning and she informed him about the incident. Her Naani also came in the morning and she also informed about the incident. She went to Police Station alongwith them and her father lodged the complaint with Police. She was got medically examined and thereafter, she was produced before Learned MM who recorded her statement u/s 164 Cr.P.C. Same is Ex. PW5/A bearing her signature at point 'A'.
During her crossexamination by the Learned Counsel for the accused, PW5 - prosecutrix has deposed that : "Darshana Devi is my real Naani. My Naani had come first in the Morning and thereafter, my father came. We had gone to the Police Station in the afternoon."
40 of 63 41 FIR No. 225/11 PS - Mangol Puri On careful perusal and analysis of the testimony of PW5 - Prosecutrix, it is found to be clear, natural, cogent, convincing, trustworthy and inspiring confidence. Inspite of incisive cross examination by the Learned Counsel for the accused 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. 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 Smt. Santosh/her Taayi to falsely implicate her in the case.
The testimony of PW5 - Prosecutrix is also found to be corroborated by the medical evidence and the biological and serological evidence as discussed hereinbefore.
The testimony of PW5 - Prosecutrix is also found to be in consonance with her statement recorded u/s 164 Cr.P.C. Ex. PW5/A [also Ex. P1(colly.)].
The testimony of PW5 Prosecutrix is also found to be 41 of 63 42 FIR No. 225/11 PS - Mangol Puri corroborated by the testimonies of PW3 - Smt. Sunita, her maternal grand mother (motherinlaw of PW6 - Ram Singh, father of PW5 prosecutrix) and PW6 - Ram Singh, her father, to whom PW5 Prosecutrix disclosed the facts relating to the crime shortly after the incident at the first available opportunity being relevant u/s 6 and 8 of the Indian Evidence Act, 1872.
PW3 - Sunita in her examinationinchief has deposed that : "I am house wife. On 15/06/2006 I went to the house of my son in law Ram Singh, who lives near to my house. Baby/prosecutrix (name withheld) and Ram Singh were present in the house. Prosecutrix (name withheld) was not well and she was bleeding from her private parts. She was also weeping. I asked her as to what happened with her. She told me that her Mama i.e. accused Ajay, present in the Court today came upstairs and sent her brother Honney outside the house to look for her father. In the absence of Honney accused gagged her mouth, removed her clothes and raped her by lying her on the floor. I checked her private part and noticed the bleeding on her private part. Prosecutrix (name withheld) also told me that if the matter was reported to anyone, accused had given a threat to kill her and her brother. Thereafter, I alongwith Ram Singh and prosecutrix (name withheld) went to Police Station and told all the facts. Police officials also enquired from prosecutrix (name withheld) about the incident. Thereafter, prosecutrix (name withheld) was got medically examined from Sanjay Gandhi 42 of 63 43 FIR No. 225/11 PS - Mangol Puri Hospital. Doctor told me that prosecutrix (name withheld) was subjected to sexual intercourse many times. Doctor handed over certain samples to the IO which were seized vide memo Ex. PW3/A. Prosecutrix (name withheld) told me that the clothes which she was wearing at the time of incident were got burn by her Tayi Santosh, present in the Court today. Thereafter, our statements were recorded."
From the aforesaid narration of PW3 - Sunita, it is clear that she is a house wife. On 15/06/2006 she went to the house of her sonin law Ram Singh, who lives near to her house. Baby/prosecutrix (name withheld) and Ram Singh were present in the house. Prosecutrix (name withheld) was not well and she was bleeding from her private parts. She was also weeping. She asked her as to what happened with her. She (PW5) told her (PW3) that her (PW5) Mama i.e. accused Ajay, present in the Court came upstairs and sent her brother Honney outside the house to look for her father. In the absence of Honney accused gagged her mouth, removed her clothes and raped her by lying her on the floor. She (PW3) checked her private part and noticed the bleeding on her private part. Prosecutrix (name withheld) also told her that if the matter was reported to anyone, accused had given a threat to kill her and her brother. Thereafter, she (PW3) alongwith Ram Singh and prosecutrix (name 43 of 63 44 FIR No. 225/11 PS - Mangol Puri withheld) went to Police Station and told all the facts. Police officials also enquired from prosecutrix (name withheld) about the incident. Thereafter, prosecutrix (name withheld) was got medically examined from Sanjay Gandhi Hospital. Doctor told her that prosecutrix (name withheld) was subjected to sexual intercourse many times. Doctor handed over certain samples to the IO which were seized vide memo Ex. PW3/A. Prosecutrix (name withheld) told her that the clothes which she (PW5) was wearing at the time of incident were got burn by her Tayi Smt. Santosh, present in the Court. Thereafter, their statements were recorded.
During her crossexamination PW3 - Sunita has negated the suggestion that prosecutrix (name withheld) had not told her anything or that she is deposing falsely.
PW6 - Ram Singh in his examinationinchief has deposed that : "On 14/06/2011, I was residing at I671, Mangol Puri, Delhi along with my three children namely prosecutrix (name withheld), aged about 10 years, Harsh @ Hunny, aged about 6 years and Saloni is aged about three years. I am in the business of sweets (Halwai). At that time, my wife had been died about five six months before. At that time, I was 44 of 63 45 FIR No. 225/11 PS - Mangol Puri living on the first floor and my two sisterinlaws (Bhabhi) namely Sushma and Santosh (present in the Court today and correctly identified) along with their families were living on the ground floor. The brother namely Ajay of Santosh was also residing with her. On 14/06/2011 I went for my work in night and I could not return to my house due to excess work. On the next day in the afternoon, I came to my house and found my three children present in my house. The mother of my late wife visited my house. My son Harsh narrated the whole incident to my motherinlaw. My daughter/prosecutrix (name withheld) also narrated the while incident to her. I also came to know about the incident and then I in the company of my motherinlaw and daughter/prosecutrix (name withheld) went to the Police Station and got the present case registered on my complaint Ex. PW6/A bearing my signature at point 'A'. My daughter was medically examined at Sanjay Gandhi Memorial Hospital and she was later on produced before the Learned Magistrate for her statement. I came to know about the incident that my daughter/prosecutrix (name withheld) was raped by Ajay on the intervening night of 1415/06/2011 and accused Santosh present in the Court today did not help my daughter or reprimanded the accused even after she came to know about the incident. I cannot tell as to what happened to the clothes of my daughter. I joined the investigation thereafter and site plan Ex. PW6/B was prepared at my instance. Accused Ajay (Juvenile since facing trial in JJB) was arrested and his personal search was carried out vide memo Ex. PW6/C and Ex. PW6/D respectively bearing my signatures at point 'A'. I handed over the date of birth certificate of prosecutrix (name withheld) issued by Delhi Government. Same is Ex. PW6/E. My statement was recorded."
45 of 63 46 FIR No. 225/11 PS - Mangol Puri From the aforesaid narration of PW6 - Ram Singh, it is clear that on 14/06/2011, he was residing at I671, Mangol Puri, Delhi along with his three children namely prosecutrix (name withheld), aged about 10 years, Harsh @ Hunny, aged about 6 years and Saloni is aged about three years. He is in the business of sweets (Halwai). At that time, his wife had been died about five six months before. At that time, he was living on the first floor and his two sisterinlaws (Bhabhi) namely Sushma and Smt. Santosh (present in the Court and correctly identified) along with their families were living on the ground floor. The brother namely Ajay of Smt. Santosh was also residing with her. On 14/06/2011 he (PW6) went for his work and in night he could not return to his house due to excess work. On the next day in the afternoon, he came to his house and found his three children present in his house. The mother of his late wife visited his house. His son Harsh narrated the whole incident to his motherinlaw. His daughter/prosecutrix (name withheld) also narrated the while incident to her (PW3). He also came to know about the incident and then he in the company of his motherinlaw and daughter/prosecutrix (name withheld) went to the Police Station and got the present case registered on his complaint Ex. PW6/A bearing his 46 of 63 47 FIR No. 225/11 PS - Mangol Puri signature at point 'A'. His daughter was medically examined at Sanjay Gandhi Memorial Hospital and she was later on produced before the Learned Magistrate for her statement. He came to know about the incident that his daughter/prosecutrix (name withheld) was raped by Ajay on the intervening night of 1415/06/2011 and accused Smt. Santosh present in the Court today did not help his daughter or reprimanded the accused even after she came to know about the incident. He could not tell as to what happened to the clothes of his daughter. He joined the investigation thereafter and site plan Ex. PW6/B was prepared at his instance. Accused Ajay (Juvenile since facing trial in JJB) was arrested and his personal search was carried out vide memo Ex. PW6/C and Ex. PW6/D respectively bearing his signatures at point 'A'. He handed over the date of birth certificate of prosecutrix (name withheld) issued by Delhi Government. Same is Ex. PW6/E. His statement was recorded.
During his crossexamination PW6 - Ram Singh has negated the suggestion that he is deposing falsely at the instance of his motherinlaw.
There is nothing in the crossexamination of PW3 - Sunita 47 of 63 48 FIR No. 225/11 PS - Mangol Puri and PW6 - Ram Singh so as to impeach their creditworthiness. They have withstood the rigors of crossexamination without being shaken. On careful perusal and analysis and by applying the discerning scrutiny standard [Ref. Raju @ Balachandran & Ors. Vs. State of Tamil Nadu 2012 XII AD (S.C.)1] their testimonies are found to be natural, cogent, reliable and have a ring of truth. There is nothing in their statements to suggest that they had any animus against the accused to falsely implicate her in the case.
20. While analysing the testimonies of PW5 Prosecutrix, PW3
- Sunita and PW6 - Ram Singh as discussed hereinabove inspite of incisive crossexamination of PW5 Prosecutrix, PW3 - Sunita and PW6
- Ram Singh by the Learned Counsel for the accused nothing has come out in their statements which may throw even a slightest doubt on the prosecution version of the incident. Though the suggestion by the defence to PW3 - Sunita that prosecutrix (name withheld) had not told her anything or that she is deposing falsely and the suggestion to PW6
- Ram Singh that he is deposing falsely at the instance of his motherin law, were put, which were negated by the said PWs but the same have 48 of 63 49 FIR No. 225/11 PS - Mangol Puri 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.
21. It is well settled that rape, is crime and not a medical condition. Rape is a legal term and not a diagnosis to be made by the medical officer treating the victim.
It is to be noticed that the opinion expressed by Modi in Medical jurisprudence and Toxicology (Twenty First Edition) at page 369 which reads as : "Thus to constitute the offence of rape it is not necessary that there should be complete penetration of penis with emission of semen and rupture of hymen. Partial penetration of the penis within the labia majora or the vulva or pudenda with or without emission of semen or even an attempt at penetration is quite possible to commit legally the offence of rape without producing any injury to the genitals or leaving any seminal stains. In such a case the medical officer should mention the negative facts in his report, but should not give his opinion that no rape had been committed. Rape, is crime and not a medical condition. Rape is a legal term and not a diagnosis to be made by the medical officer treating the victim. The only statement that can be made by the 49 of 63 50 FIR No. 225/11 PS - Mangol Puri medical officer is that there is evidence of recent sexual activity. Whether the rape has occurred or not is a legal conclusion, not a medical one."
In Parikh's Textbook of Medical jurisprudence and Toxicology, the following passage is found:
"Sexual intercourse : In law, this term is held to mean the slightest degree of penetration of the vulva by the penis with or without emission of semen. It is therefore quite possible to commit legally the offence of rape without producing any injury to the genitals or leaving any seminal stains."
In Encyclopedia of Crime and Justice (Vol. 4) at page 1356, it is stated:
".....even slight penetration is sufficient and emission is unnecessary."
On analysing the testimony of PW5 - Prosecutrix in the light of medical evidence, vide MLC Ex. PW4/A, the gynaecological examination Ex. PW4/B from point 'X' to 'X' on the MLC Ex. PW 4/A of the prosecutrix and biological and serological evidence together with the MLC of accused Ajay (Juvenile) Ex. PW10/A, as discussed herein 50 of 63 51 FIR No. 225/11 PS - Mangol Puri before, the act of performing of sexual intercourse activity by complete penetration of the penis or by partial penetration of the penis, within the 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 Ajay (Juvenile) with PW5 - Prosecutrix without her consent.
22. Learned Counsel for the accused submitted that there is contradiction on the aspect of disposal of the undergarments of the prosecutrix. He submitted that PW3 - Smt. Sunita, Naani of the prosecutrix in her statement has stated that prosecutrix (name withheld) told her that the clothes which she was wearing at the time of incident were "got burnt" by her Tayi Santosh present in the Court. The statement of this witness has been got confronted with the statement made by her to the Police which is Ex. PW3/DA where the burning of clothes by Santosh is not recorded.
He further submitted that PW5 - prosecutrix in her examinationinchief has stated that "I kept my blood stained clothes 51 of 63 52 FIR No. 225/11 PS - Mangol Puri where we used to keep our utensils. In the morning my brother gave them to garbage collector thinking them to be garbage." This witness has been declared hostile and has been crossexamined by the Learned Addl. PP but nothing useful material has come out in the cross examination. During her crossexamination by Learned Addl. PP, she has stated "My brother Harsh told me that he had thrown the dirty clothes in the garbage van."
He further submitted that PW6 - Ram Singh in his statement has stated "I cannot tell as to what happened to the clothes of my daughter."
He further submitted that as per PW4 - Dr. Hena Kausar, the prosecutrix has told to her about the undergarments which were soaked with blood, which were thrown away by the accused's sister in the morning.
I have carefully perused and analysed the evidence on record.
It is a settled principle that the 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.
52 of 63 53 FIR No. 225/11 PS - Mangol Puri The testimony of PW5 - prosecutrix has been reproduced, discussed and analysed hereinabove and the same on careful perusal and analysis has been found to be natural, clear, cogent, trustworthy and reliable. She has described the scenario implicating the accused Ajay (Juvenile) to be author of crime; of committal of sexual assault upon her and implicating the accused Smt. Santosh/her Taayi/sister of accused Ajay (Juvenile) of having thrown her blood soaked worn clothes. She has withstood the rigors of crossexamination without being shaken. Her version on the core spectrum of the crime has remained intact. There is nothing in her statement to suggest that she had any animus against accused Smt. Santosh/her Taayi to falsely implicate her in the case.
At the cost of repetition, it is pertinent to reproduce the examinationinchief of PW5 - prosecutrix which reads as under : "I live with my father at Mangol Puri on the above said address. My mother had expired. My brother Harsh and my sister Saloni also lived with me. Harsh is 7 years old and Saloni is 3 years old. My Taayi Santosh and her children used to live in the same building with us. We lived on the first floor and my Taayi was living on ground floor. One Ajay brother of Taayi also used to live there. My father is Halwai and works on contract basis. Sometimes he used to stay overnight because of his work. On day in the night time, I was on the first floor and my father had gone for his work. Ajay (Juvenile), brother of my 53 of 63 54 FIR No. 225/11 PS - Mangol Puri Taayi came to the first floor and started doing Gandi Harkatey. At that time, my Taayi, present in the Court today (correctly identified) was living on the ground floor. My brother Harsh was sleeping and at that time, I was watching TV with my sister Saloni. As I was waiting for my father so the door was not locked. Accused Ajay after coming in the room sat with us and he also watched TV. After some time my younger sister slept and I was also preparing to sleep but accused Ajay started doing Gandi Harkatey with me. Thereafter, accused Ajay caught hold of my hand and lay me on the bed of my father and thereafter, he lied upon me. But he had not taken off my clothes and his clothes. After some time accused had removed my clothes and also removed his clothes. Accused Ajay inserted his penis into my vagina (Meri Susu Wali Jagah Me Apni Susu Wali Jagah Daal Di Thi). I started bleeding and my clothes were got blood stained. I kept my blood stained clothes where we used to keep our utensils. In the morning my brother gave them to garbage collector thinking them to be garbage. In the morning, my Taayi had gone for her work. I had complained about the acts of Ajay to Kanchan, daughter of my Taayi who took Ajay downstairs. I have told about my clothes to Kanchan. Kanchan told about the incident to my Taayi in the night itself when she returned from her work at about 9:00 p.m. Kanchan had told to my Taayi about my blood stained clothes in the night itself. My Taayi had not made any enquiry from me regarding the wrong act done by accused Ajay. I narrated the entire incident to my Taayi in the night itself and about my blood stained clothes. My Taayi did not show any sympathy towards me or she reprimanded accused Ajay nor she asked from me about my 54 of 63 55 FIR No. 225/11 PS - Mangol Puri clothes.
My clothes were consisted of Salwar and Kamiz. My father came back in the morning and I informed him about the incident. My Naani also came in the morning and she also informed about the incident. I went to Police Station alongwith them and my father lodged the complaint with Police. I was got medically examined and thereafter, I was produced before Learned MM who recorded my statement u/s 164 Cr.P.C. Same is Ex. PW5/A bearing my signature at point 'A'."
During her crossexamination by Learned Addl. PP for the State, PW5 - Prosecutrix has deposed : "I had deposed truly and correctly before Learned MM. It is correct that I had stated before Learned MM that Santosh had thrown my dirty clothes in the garbage van. It is incorrect to suggest that my Taayi Santosh had asked me to sleep with accused Ajay. Confronted with statement Ex. PW5/A from point 'A' to 'A' where it is so recorded. It is correct that my Taayi Santosh had asked me not to disclose the incident to anyone. It is incorrect to suggest that I am confused about the fact regarding throwing of my dirty clothes in Garbage Van. My brother Harsh had told me that he had thrown the dirty clothes in the Garbage Van. I cannot say whether my brother had told a lie to me that he had thrown the clothes but actually the clothes were thrown by my Taayi Santosh."
(Underlined by me) As reproduced above, on the facts deposed by PW5 -
55 of 63 56 FIR No. 225/11 PS - Mangol Puri prosecutrix in the examinationinchief and on the facts elicited during her crossexamination by the Learned Addl. PP for the State, PW5 - prosecutrix was not crossexamined on behalf of accused Smt. Santosh; whereby the said facts so deposed by PW5 - prosecutrix remained uncontroverted.
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).
Further, the testimony of PW5 - prosecutrix is also corroborated by PW4 - Dr. Hena Kausar, SR Gynae, who in her examinationinchief has specifically deposed : On 15/06/2011, at about 8:05 p.m. patient/prosecutrix (name withheld) aged about 08 years D/o Ram Singh was brought to SGM Hospital by Lady Head Constable Murti who was examined by Dr. Arvind at casualty vide MLC No. 5984. The same is Ex. PW4/A. After examining the patient/prosecutrix (name withheld) was referred to SR, Gynae.
On the very same day at about 9:00 p.m. I examined prosecutrix (name withheld) with the alleged history of sexual assault at her home by a relative Ajay. According to patient accused has forcefully done sexual intercourse followed by bleeding per vagina. According to 56 of 63 57 FIR No. 225/11 PS - Mangol Puri victim her undergarments were soaked with blood which was thrown away by accused's sister in morning. Patient took bath after the incident and came at around 2022 hours after the incident for examination."
From above it is clearly indicated that patient/prosecutrix, at the first available opportunity, had told to PW4 - Dr. Hena Kausar that her undergarments were soaked with blood which was thrown away in the morning by accused's sister that is Santosh, sister of accused Ajay.
At the cost of repetition PW5 - prosecutrix in her examinationinchief as reproduced hereinabove has specifically deposed that "one Ajay brother of Taayi also used to live there".
It is nowhere been disputed by accused Smt. Santosh that Ajay (Juvenile) was not her brother or that he was not living with her.
Despite grant of opportunity PW4 - Dr. Hena Kausar was not crossexamined on behalf of accused Smt. Santosh even on the facts disclosed to her (PW4 - Dr. Hena Kaushar) by PW5 - prosecutrix, at the time of her medical examination that her undergarments were soaked with blood which was thrown away in the morning by accused's 57 of 63 58 FIR No. 225/11 PS - Mangol Puri sister that is Santosh, as reproduced hereinabove, whereby the said facts remained uncontroverted.
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).
As regards that PW3 - Smt. Sunita has deposed that prosecutrix told her that the clothes worn by her were got burnt by her Taayi and that PW6 - Ram Singh has deposed that he cannot tell as to what happened to the clothes of her daughter, is concerned, they have deposed as to what they perceived. In the circumstances, their said parts of the testimonies do not falsify the case of the prosecution which is otherwise proved on record by clear, cogent and convincing evidence.
Even the honest and truthful witness may differ in some details unrelated to the main incident because power of observation, retention and reproduction differs with individuals. Discrepancies which do not go to the root of the matter and shake the basic version of the witnesses, therefore cannot be annexed with undue importance. (Ref. 'Mahmood Vs. State', 1991 RLR 287).
58 of 63 59 FIR No. 225/11 PS - Mangol Puri In case A. Shankar Vs. State of Karnataka, 2011 VII AD (SC) 37, the Hon'ble Supreme Court has held : "....... Exaggerations per se do not render the evidence brittle. But it can be one of the factors to test the credibility of the prosecution version, when the entire evidence is put in a crucible for being tested on the touchstone of credibility. Therefore, mere marginal variations in the statements of a witness cannot be dubbed as improvements as the same may be elaborations of the statement made by the witness earlier.
Irrelevant details which do not in any way corrode the credibility of a witness cannot be labelled as omission or contradictions.....".
The Hon'ble Supreme Court in 'Bharwada Bhoginbhai Hirjibhai Vs. State of Gujrat' (1983) 3 SCC 217, has held much importance cannot be attached to minor discrepancies for the reasons :
1) By and large a witness cannot be expected to possess a photographic memory and to recall the details of an incident. It is not as if a video tape is replayed on mental screen; 2) Ordinarily it so happens that a witness is overtaken by events. The witness could not have anticipated the occurrence which so often has an element of surprise. The mental 59 of 63 60 FIR No. 225/11 PS - Mangol Puri 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 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 60 of 63 61 FIR No. 225/11 PS - Mangol Puri narrating a particular incident, there may occur minor discrepancies. Such discrepancies may even in Law render credential to the depositions. The improvements or variations must essentially relate to the material particulars of the prosecution case. The alleged improvements and variations must be shown with respect to material particulars of the case and the occurrence. Every such improvement, not directly related to the occurrence is not a ground to doubt the testimony of a witness. The credibility of a definite circumstance of the prosecution case cannot be weakened with reference to such minor or insignificant improvements. Reference in this regard can be made to the judgments of this Court in Kathi Bharat Vajsur and Another Vs. State of Gujrat [(2010) 5 SCC 724], Narayan Chetanram Chaudhary and Another Vs. State of Maharashtra [(2000) 8 SCC 457], D. P. Chadha Vs. Triyugi Narain Mishra and Others [(2001) 2 SCC 205] and Sukhchain Singh Vs. State of Haryana and others [(2002) 5 SCC 100].
In the circumstance, there is no substance in the plea so raised by the Learned Counsel for the accused.
23. In view of above and in the circumstances, prosecution has thus categorically proved beyond shadows of all reasonable doubts that on the intervening night of 1415/06/2011 at about 12 mid night, accused Ajay (Juvenile) committed rape upon PW5 prosecutrix aged about eight years (To be exact 08 years, 06 months and 11 days) and also threatened 61 of 63 62 FIR No. 225/11 PS - Mangol Puri to kill her brother and sister and that accused Smt. Santosh (Taayi of prosecutrix) despite knowing about the committal of offence of rape upon the prosecutrix by her brother accused Ajay (Juvenile) had thrown blood stained clothes of prosecutrix worn by her at the time of incident in a garbage vehicle and thus caused the evidence of the commission of the offence of rape to disappear, with the intention, to screen the offender, her brother accused Ajay (Juvenile).
I accordingly hold accused Smt. Santosh guilty for the offence punishable u/s 201 IPC and convict her thereunder.
24. In view of above discussion, I am of the considered opinion that as far as the involvement of the accused Smt. Santosh in the commission of the offence u/s 201 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 Smt. Santosh beyond shadows of all reasonable doubts and there is no room for hypothesis, consistent with that of innocence of accused. I, therefore, hold accused Smt. Santosh guilty for the offence punishable u/s 201 IPC and convict her thereunder.
62 of 63 63 FIR No. 225/11 PS - Mangol Puri Announced in the open Court (MAHESH CHANDER GUPTA) on 18th Day of February, 2014 Additional Sessions Judge Special Fast Track Court (N/W District), Rohini, Delhi 63 of 63