Delhi District Court
Fir No. 663/07, P.S Welcome , U/Sec.363/ ... vs Parveen Kumar on 24 April, 2010
1
FIR NO. 663/07, P.S WELCOME , U/SEC.363/ 376 IPC, ST VS PARVEEN KUMAR
IN THE COURT OF SH. B.S. CHUMBAK, ADDITIONAL SESSIONS
JUDGE : DELHI
Case ID Number 02402R0733502007
Session Case No. 55/08
Assigned to Sessions 03/12/07
Arguments heard on 16/04/2010
Date of order 24/042010
FIR NO. 663/07
Police Station Welcome
Under Section U/Sec. 363/376 IPC
Out come of the case Acquitted.
State Versus PARVEEN KUMAR S/O SH.SALEKH
CHAND R/O RAHUL GARDEN, BAHTA
HAZIPUR, LONI, DISTT. GHAZIA BAD
U.P
PERMANENT ADD. : MANJARA, P.S
MUJAFFAR NAGAR, DISTT. MUJAFFAR
NAGAR, U.P
PRESENT : Ms. Neelam Narang, Ld. Addl. PP for the state.
Sh. Dassa Ram advocate/ Amicus Curaie for the accused.
JUDGMENT
1. Initially a case u/sec.363 IPC was registered at police station Welcome vide FIR No. 663/07 on the basis of complaint made by Sh. Raju s/o Lakshman Singh r/o G-74, Janta Colony, Welcome Delhi against Parveen s/o Salekh Chand r/o Rahul Garden, Bahta Hazipur, Loni, Distt. Ghaziabd U.P. 1 2 FIR NO. 663/07, P.S WELCOME , U/SEC.363/ 376 IPC, ST VS PARVEEN KUMAR
2. Brief facts arising out of this case are that after registration of the u/sec. 363 IPC, investigation was assigned to ASI Brij Pal. During the course of investigation and on the same day, prosecutrix Mamta and accused Parven were got apprehended at Anand Vihar Bus Stand on the basis of identification of the complainant. Accused Parveen was arrested, he was interrogated and during the course of interrogation he made a disclosure statement. Prosecutrix and accused both were medically examined vide MLC No. B-4056/07 and C-5047/07 respectively. Statement of Kumari Mamta was recorded wherein she stated that: "she has been rapped by the accused. This fact was also disclosed by the accused in his disclosure statement wherein he admitted that he committed rape upon Mamta two times in the night and also got identified the place of commission of rape. Identification memo was prepared , all the exhibits given by the doctor at the time of examination of accused and prosecutrix were taken in possession. Birth certificate of prosecutrix from the concerned school was obtained wherein date of birth of prosecutrix was mentioned as 01/4/1995. Statement of prosecutrix u/sec. 164 Cr.P.C was got recorded wherein she stated that she has been raped by the accused and thereafter section 376 IPC was also added with section 363 IPC. All the exhibits which were taken in possession at the time of examination of accused were sent to office of CFSL Rohini. Statement of witnesses were recorded and after completion of necessary investigation challan u/sec. 173 Cr.P.C was 2 3 FIR NO. 663/07, P.S WELCOME , U/SEC.363/ 376 IPC, ST VS PARVEEN KUMAR presented before the court of ld. MM.
3.Ld. MM after taking cognizance for the offence u/s 363/376 IPC, supplied the copies of the challan as required u/s 207 Cr.P.C and committed the case to the court of Sessions and on turn allocated to this court for trial.
4. After hearing arguments and considering the material placed on record a charge for the offence u/s 363/376 IPC was framed against to which accused pleaded not guilty and claimed trial, thereafter case was fixed for prosecution evidence.
5. To prove its case prosecution examined tweleve witnesses in all namely Sh. Raju(complainant/father of prosecutrix) as (PW.1), Ms. Mamta (prosecutrix) as (PW.2), Ms.Kamla Kumari as (PW3), Lady Const. Geeta as (PW4), Kumari Maya d/o Raju(sister of prosecutrix) as (PW5), Sh. Raj Kumar Ld. MM as (PW6), H.C Rati Ram as (PW.7), H.C Sohan Lal as (PW8), Const. Jai Veer as (PW9), ASI Brij Pal Singh as (PW.10), Dr. Anshul Grover as (PW.11) and Dr.P.KSaha as (PW.12). Thereafter no witness left to be examined and prosecution evidence was closed.
6. Brief testimony of the aforesaid witnesses are as follows : 3 4
FIR NO. 663/07, P.S WELCOME , U/SEC.363/ 376 IPC, ST VS PARVEEN KUMAR
(i) PW.1 deposed that on 10/9/07 his daughter Maya told him that at about 8-9 P.M accused Parveen had taken his daughter Mamta(aged about 13-
14 years with him ) He made efforts to searched his daughter but she could not be searched. Thereafter he went to police station and lodged a missing report. He further stated that in the intervening night of 10/11-09- 07 his daughter was recovered from bus stand Anand Vihar from the possession of the accused present in the court(witness correctly identified). Recovery memo of his daughter Ex.PW 1/A was prepared, bearing his signatures at point 'A' He further stated that accused was arrested, his arrest memo and personal search memo Ex.PW 1/B and Ex.PW 1/C were prepared which bearing his signatures at points A. He further deposed that police officials took him and his daughter to the police station and from there she was taken to GTB hospital for her medical examination. He also handed over a certificate showing the date of birth of the prosecutrix issued by Principle of Nagar Nigam Prathmic Vidayla 1st Session, which was also taken in possession Ex.PW 1/D bearing his signatures at point A. During his cross- examination he deposed that he has five children including the prosecutrix but he cannot tell the exact date of birth of any of his five children. He also deposed that he does not remember whether he is in possession of Janampatri of his daughter Mamta or not. However, same was got prepared by him. He also failed to explain whether accused 4 5 FIR NO. 663/07, P.S WELCOME , U/SEC.363/ 376 IPC, ST VS PARVEEN KUMAR Parveen used to visit his house at Shahdara or not. He further stated that he never proposed his daughter Mamta for marriage with the accused. He also denied the suggestion that age of his daughter Mamta was 19 years on the day of incident. He also failed to explain whether his daughter Maya brought vegetable from the market or not on that day as no food was prepared at his house. He also stated that till Maya remained with Mamta and Parveen, they had not eaten anything in the market. Rest of his testimony is reiterated by him as submitted by him during examination in chief.
(ii)PW2 deposed that prior to this incident she used to reside at Bahta Ghaziabd on rent and accused also used to reside in a gali behind their house at Bahta. On 10/9/07 at about 7 P.M she along with her sister Maya had gone to market. Accused (Parveen correctly identified) met them on the way and sent her sister Maya back to her house and took her at his bicycle on the pretext of providing some good things. Accused first took her to park near Jheel and purchased Ice cream for her thereafter accused took her to Jungle despite resistance by her. She further deposed that accused committed rape on her in the Jungle. He had parked his cycle in a factory and took her to unknown place in a bus from where police officials apprehended both of them and took them to the police station Welcome. Her father was also called, her statement was recorded by the police. She 5 6 FIR NO. 663/07, P.S WELCOME , U/SEC.363/ 376 IPC, ST VS PARVEEN KUMAR identified her signatures on recovery memo Ex.PW 1/A bearing his signatures at point B. Police officials also took her and accused to the place where she was rapped, pointing out memo Ex.PW 2/A was prepared. She further deposed that police took her to hospital and was got medically examined. Her statement was recorded in the court and she identified her thumb impression on the statement u/sec. 164 Cr.P.C which is Ex.PW 2/B. During her cross-examination and on asking question by the court she also failed to disclose the name of place from where she had come on that day, she replied that she did not know. She also failed to disclose her age. She also admitted that accused Parveen was known to her by face as he was residing in a back side gali of her house and was well acquaintained with the address of the accused. She also stated that parents of the accused were also known to her but there was no talking terms with them. Father of the accused used to drive Buggy and her father used to drive the rickshaw and she also stated that two brothers of the accused , their wives, parents were residing in the house jointly with accused persons. She also admitted that four/five days prior to this incident, she met with Parveen near Jheel. She also admitted that place of meeting was thickly populated area, shop were open and public persons were passing through that place. She also stated that she and her sister had a conversation with accused for about 10/15 minutes in the market and there was 10/15 minutes walking distance of his house from the market. Accused also provided biscuits and 6 7 FIR NO. 663/07, P.S WELCOME , U/SEC.363/ 376 IPC, ST VS PARVEEN KUMAR toffees though she had made the payment of the same. She further stated that accused asked her sister to go to her home after taking biscuits and toffees and she (prosecutrix) was asked to sit on his cycle. She also stated that she told her sister Maya to tell to the family members that she was going with Parveen for outing. She also stated that she could not purchase vegetable from the market. Therefore, no vegetable were given to her sister. She also stated that she was sitting at the carrier of the cycle. She also stated that they both had gone to the park, took ice-cream. She also admitted that she used to visit the house of Bhabhi of accused occasionally but his Bhabhi never visited her house. She further stated that she boarded a bus after leaving the cycle but she failed to explain the route & number of the bus.
On asking question to the effect that at the time of staying in jungle, with the accused she awake or slept in the night, she replied that accused took her in a factory in the night as it was on a walking distance, one person was sleeping in the factory. Accused opened the factory and committed rape upon her in the factory also. After committing rape in the jungle, accused took her in the factory and committed rape after an hour. She also identified the factory as well as the jungle where she was raped. She also denied the suggestion that her father demanded Rs.50,000/- from the father of the accused for arranging her marriage and due to this reason accused has been falsely implicated in the present case by her. She also 7 8 FIR NO. 663/07, P.S WELCOME , U/SEC.363/ 376 IPC, ST VS PARVEEN KUMAR denied the suggestion that her age was 19 years and not 12 years at the time of commission of offence. Rest of her testimony is reiterated by her as submitted during examination in chief.
(iii) PW3 deposed that she had seen the certificate Ex.PW 3/A issued by her bearing her signatures at point A and as per school record, prosecutrix was studying in 3rd standard and her date of birth is 01/04/95. On next date of hearing she also brought the summoned record and deposed that at the time of seeking admission of the prosecutrix no document in support of date of birth were produced. Affidavit was also not given which was not required as per MCD rules in vogue on those days.
(iv)PW4 is formal witness and deposed that on 12/9/07 she joined the investigation of this case with ASI Brij Pal and on that day she had taken prosecutrix Mamta to the court and got her statement recorded u/sec. 164 Cr.P.C and after recording her statement, the custody of the prosecutrix was handed over to her father.
(v)PW5 deposed that about an year ago she along with her elder sister Mamta had gone to market near their house. Accused(correctly identified) Parveen met them in the market. Accused took her sister Mamta on his cycle by saying that they would come after sometime and she was asked to 8 9 FIR NO. 663/07, P.S WELCOME , U/SEC.363/ 376 IPC, ST VS PARVEEN KUMAR go to her house. In the night when her father came to her house, she narrated the incident that accused took Mamta with him. During her cross- examination she stated that on the day of incident she and her sister Mamta left their house at about 5-6 p.m and at that time none of the family member was present at their house. She also stated that her sister purchased vegetable from the market but she cannot tell the specification of the vegetables purchased by them. She also stated that accused and Mamta had a talk with each other for half an hour. She also admitted that many persons were coming and going in the market. Rest of her testimony is reiterated as submitted by her during examination in chief.
(vi)PW6 deposed that on 12/9/07 he was working as Link MM and on that day an application was brought before him by the IO which was marked to him by the Ld. Link MM. After satisfying himself that prosecutrix was making statement voluntarily, he recorded her statement Ex.PW 2/A bearing his signatures at point B. He also gave certificate Ex.PW 6/A bearing his signatures at point A.
(vii)PW7 is formal witness and deposed that on 11/9/07 Raju s/o Laxman had come to the police station and got his statement recorded with regard to missing of his daughter. On the basis of his statement, he registered a FIR 9 10 FIR NO. 663/07, P.S WELCOME , U/SEC.363/ 376 IPC, ST VS PARVEEN KUMAR No. 663/07, u/sec. 363 IPC, computer copy of the FIR is Ex.PW 7/A which bears his signatures at point A.
(viii) PW8 is again formal witness and deposed that on 22/10/07 he received case property i.e sealed parcel from MHC(M) vide R/C No. 245/07 and deposited the same in the office of CFSL Rohini. He also stated that till the case property remained in his possession, no body tampered with it. During his cross-examination he stated that he did not remember the particulars of the seal.
(ix)PW9 deposed that on 11/9/07 he along with IO, lady/Ct. Santosh and complainant Raju went to Rahul Garden Behata and on reaching there they came to know that accused and the prosecutrix can be apprehended at bus stand Anand Vihar. On receipt of this information they all reached at bus stand Anand Vihar, and on the identification of Raju, father of the prosecutrix, accused and prosecutrix both were apprehended. Prosecutrix was handed over to L/Ct. Santosh and accused was arrested vide memo Ex.PW 1/B and his personal search Ex.PW 1/C was conducted. Disclosure statement of the accused was recorded in his presence Ex.PW 9/A. Fard Nishandehi was also prepared in his presence. He further stated that prosecutrix and accused both were medically examined at GTB hospital, blood sample of accused was taken by the doctor and handed over to him and seizure memo to this effect was also prepared by the IO which is 10 11 FIR NO. 663/07, P.S WELCOME , U/SEC.363/ 376 IPC, ST VS PARVEEN KUMAR Ex.PW 9/B. Pant of accused was also taken in possession vide memo Ex.PW 9/C. On 12/9/07 he again joined the investigation of this case with the IO and birth certificate already Ex.PW 1/D was taken in possession by the IO. He also identified the pant when shown to him in the court which is Ex.P.1. Rest of his testimony is reiterated by him as submitted during the examination in chief.
(x)PW10 is the investigating officer of this case. He deposed that on 11/9/07 investigation of this case was assigned to him. Thereafter he along with lady constable Santosh and Const. Jaiveer and complainant Raju reached in the area of Janta colony in search of prosecutrix Mamta. When they reached at the house of Parveen at Rahul Garden, Loni, father of accused met them in the house and disclosed that neither accused nor prosecutrix were present at his house. But on conducting enqiry they came to know that prosecutrix and the accused both were present there and were in preparation to fled away from there. Thereafter they went to Anand Vihar bus stand and found both prosecutrix and the accused present there. They both were identified by complainant Raju. They both were apprehended, statement u/sec. 161 Cr.P.C was recorded wherein prosecutrix stated that accused committed rape on her. Recovery memo Ex. PW 1/A, arrest memo Ex.PW 1/B, personal search of accused Ex.PW 1/C and disclosure statement Ex.PW 9/A were prepared by him. Accused also took them to 11 12 FIR NO. 663/07, P.S WELCOME , U/SEC.363/ 376 IPC, ST VS PARVEEN KUMAR the place of incident i.e field in the area of Mandoli road and pointing out memo in this regard was also prepared which is Ex.PW 2/A. Prosecutrix was taken to GTB hospital by L/Ct. Santosh for her medical examination and accused was taken to GTB hospital by Const. Jaiveer. L/Ct. Santosh handed over him two slides, two pullanda sealed with the seal of GTB hospital along wit the sample seal and MLC of prosecutrix. He seized the same vide memo Ex.PW 10/A. Const. Jaiveer handed over him the blood sample duly sealed with the seal of hospital with sample seal and MLC of accused which was given to him by the doctor and he seized the same vide memo Ex.PW 9/B. He further stated that accused was not wearing underwear and was only wearing trouser. Other trouser could not be made available before the doctor so his pant could not be seized by the doctor. He arranged another pant for the accused at the police station and seized his pant, sealed with the seal of BS and seized the same vide memo Ex.PW 9/C. He further stated that he deposited the case property in the Malkhana. He further stated that on 12/9/07 accused was produced before Ld. MM and was sent to judicial custody. On that day L/Ct. Geeta also joined the investigation with him and he got the statement of prosecutrix u/sec. 164 Cr.P.C recorded. He also obtained the DOB certificate submitted to him by her father, seizure memo of the same is Ex.PW 1/D. Certificate is Ex.PW 3/A, is the same which was seized by him during investigation of this case. He also sent all the exhibits to CFSL and result 12 13 FIR NO. 663/07, P.S WELCOME , U/SEC.363/ 376 IPC, ST VS PARVEEN KUMAR Ex.PW 10/B and 10/C. After completion of investigation he presented the challan to the court of Ld. MM.
(xi)PW.11 deposed that on 11/9/07 she was posted as Sr. Resident in the department of OBS and Gynae at GTB Hospital and on that day at about 8 P.M patient Mamta aged about 13 years female was produced by her father Raju & W/Ct. Santosh with the alleged history of forceful sexual intercourse by one Parveen for her internal medical examination. She after obtaining her willingness for medical examination and also obtaining signatures at point 'A' examined the prosecutrix Mamta.
"On examination she gave her findings as under: Patient had not taken bath since the incident. On local examination the hymen was found to be torn. There was no bleeding from any hymenal edge. No fresh tear." She also took one underwear, pubic hairs and two vaginal slides prepared from the posterior fornix and handed over to L/Ct., duly sealed with the seal of hospital. MLC prepared by her is in her own hand and same is Ex.PW 11/A bearing her signatures at point A. During her cross-examination she stated that she mentioned the age of the prosecutrix at the instance of prosecutrix and her father. She has not advised for bonny age X-ray for determination of age of the prosecutrix as she was not having any doubt of her age as 13 years. She also stated that she had ascertained the age of the prosecutrix on the basis of development of her sexual character and attainment of menarche.13 14
FIR NO. 663/07, P.S WELCOME , U/SEC.363/ 376 IPC, ST VS PARVEEN KUMAR
(xii)PW.12 deposed that on 11/9/07 at about 7.30 P.M one Parveen s/o Salekh Chand aged about 19 years was brought to GTB Hospital by Ct.
Jaiveer for his medical examination. Dr. Nitin medically examined Parveen under his supervision and Dr. Nitin has left the services of the hospital now and his present whereabouts are not known as per the hospital record. He had seen Dr. Nitin writing and signing the documents during his official duties and he identified the signature of Dr. Nitin on MLC Ex.PW 12/A at point A. and his own name at point B. He also stated that as per the MLC there is nothing to suggest that patient cannot perform sexual intercourse. The blood sample of patient was taken and was handed over to Ct. Jaiveer. After examination of PW.12, no other PW left to be examined, therefore, PE was closed and case was fixed for recording of statement of the accused u/sec. 313 Cr.P.C.
7. During course of examination of accused u/s 313 Cr.P.C he controverted all the allegations as alleged against him by the prosecution. He further stated that prosecutrix was known to him as she was his neighbour. When he used to visit the house of his friend Sandep whose house was situated in front of house of prosecutrix, the parents of the prosecutrix started raising doubt upon him and they suspected that he used to go to the house of his friend with the sole aim to see the prosecutrix and due to this reason 14 15 FIR NO. 663/07, P.S WELCOME , U/SEC.363/ 376 IPC, ST VS PARVEEN KUMAR they had falsely implicated him in this case. He further stated that on the day of incident i.e 10/9/07 he left his house at about 9 a.m for his duty and reached to Sewa Tham road at about 9.30 a.m and remained there till 7 p.m. One Akhlaq and his friend Sandep s/o Ramesh also present with him on duty till 7 p.m. He reached at his house at about 7.30 p.m. He along with his friend went to Shani Bazar and after taking burger, chaumeen etc., he returned to his house at about 8.15 p.m and after taking dinner he slept. At about 2 a.m in the morning police officials reached at his house and took him to the police station. He was interrogated by the police and after half an hour prosecutrix along with her family member reached there. Father of the prosecutrix was also present at the police station and stated that he had committed rape upon his daughter and compelled him to get marry with his daughter(prosecutrix) and when he refused to get marry his daughter(prosecutrix) he was falsely implicated in this case and submitted that he was innocent and no offence has been committed by him. He also desire to lead any defence evidence therefore, case was fixed for DE but after giving sufficient opportunities to lead defence evidence, accused failed to lead defence evidence ultimately defence evidence closed and case was fixed for final arguments.
8. I have heard arguments on behalf of ld. counsel for accused and Ld. Addl. PP for state.
15 16 FIR NO. 663/07, P.S WELCOME , U/SEC.363/ 376 IPC, ST VS PARVEEN KUMAR
9. Ld. counsel for accused submitted that before convicting the accused under any penal of law it is the duty of prosecution to prove its case beyond reasonable doubt and in the present case there are material confrontations and contradictions in the testimony of PW.1/father of the prosecutrix, PW.2 Mamta/prosecutrix and PW5/Maya, sister of the prosecutrix.
10. PW.1 father of the prosecutrix stated that on 10/9/07 his daughter Maya told him that accused Parveen had taken his daughter Mamta aged about 13/14 years with him and when he could not search his daughter, he lodged a report at police station Welcome. During his cross-examination he stated that he is having five children but he cannot tell the date of birth of any of his child. He also admitted that at the time of seeking admission of Mamta in Primary school Subhash Park, 1st shift his wife accompanied her. He also failed to explain whether his wife produced Janam Patri of Mamta at the time of seeking her admission in a school. He also failed to explain whether accused Parveen used to visit his house at Shahdara or not. He also stated that on the day of accident when his daughter Maya and Mamta left for market to buy vegetable, his two sons were present in the house. But PW5 Maya during her cross-examination specifically stated that when she left her house none from his family member was present in the house. He also failed to explain whether his daughter Maya purchased vegetable from the market on that day or not.
16 17 FIR NO. 663/07, P.S WELCOME , U/SEC.363/ 376 IPC, ST VS PARVEEN KUMAR
11.On the other hand PW.5 Maya stated that her sister purchased the vegetable from the market but prosecutrix Mamta in her statement stated that she could not purchase any vegetable from the market on that day. PW1 also stated that till Maya remained with Mamta they had not eaten anything in the market.
12.On the other hand PW.2 Mamta during her cross-examination stated that accused had given them biscuit and toffee for which she had made payment. During her cross-examination she stated that accused asked her sister Maya to go home after giving her biscuit and toffee and thereafter her sister Maya returned to home alone.
13.PW2 prosecutrix during her cross-examination deposed that she stated to her younger sister Maya to discharge to her parents that she went with Parveen for outing. She also stated that when she left her home for market, her two younger brothers were present in the house but this fact is denied by PW.5 as she clearly stated that none of her family member was present at the time of their leaving the home by them for market.
14.PW2 during her examination in chief stated that on 10/9/07 at about 7 P.M she along with her younger sister Maya had gone to the market and 17 18 FIR NO. 663/07, P.S WELCOME , U/SEC.363/ 376 IPC, ST VS PARVEEN KUMAR accused Parveen met them on the way. During her cross-examination she stated that it was 6 P.M when they both were standing in the market. She also admitted that number of people including women, girls and men were present in the park and they remained in the park for half an hour and had took ice cream in the park. She also admitted that she was aware of the way from the market to her house. She also admitted that accused present in the court was well known to her one or two months prior to this accident. She also stated that she used to visit the house of Bhabhi of accused but Bhabhi of accused never visited their house. During cross-examination she also stated that accused never visited her house but he occasionally used to visit the house of her Aunt which was in front of her house. She also admitted that she went with the accused while siting on the carrier of his cycle. She also admitted that when she was taken in a jungle/field from the park through Metaled Road, traffic was coming and going on the road, and many public persons were also seen walking there. She also admitted that three four police officials and her father took her to the police station Welcome and at that time no lady police was present among the police officials. She also admitted that she had shown the factory and jungle where rape was committed on her. But no such site plan of the factory as well as Jungle is placed on record by the investigating officer. She denied that she was about 19 years of age at the time of incident. 18 19 FIR NO. 663/07, P.S WELCOME , U/SEC.363/ 376 IPC, ST VS PARVEEN KUMAR
15.On perusal of the facts and circumstances mentioned in this case and the testimony of prosecutrix it has become crystal clear that prosecutrix of her own accompanied the accused and went to the park while sitting on the carrier of his cycle. Many persons were present in the park and she has not disclosed to any person with regard to any sort of inducement committed by the accused for taking her to the park.
16.It is further pleaded that no ossification test of prosecutrix was conducted by the IO and her date of birth was taken as 01/4/95 only on the basis of certificate Ex.PW 3/A issued by the principle of MCD Primary School Subhash Park Delhi(First shift). During her cross-examination PW.3(Principle of the MCD school) she specifically stated that at the time of seeking admission of Mamta , her date of birth was written as 01/4/95 by the parents but no document was provided at the time of seeking admission. She further stated that not even an affidavit was given as it was not required as per MCD rules in vogue at that time.
17.PW.1 father of the prosecutrix stated that prosecutrix was got admitted in the said school by her mother . Neither the mother of the prosecutrix was examined to prove the date of birth of the prosecutrix nor father of the prosecutrix ever disclosed that date of birth of his daughter Mamta/prosecutrix is 01/4/95. In such circumstances it has become crystal 19 20 FIR NO. 663/07, P.S WELCOME , U/SEC.363/ 376 IPC, ST VS PARVEEN KUMAR clear that prosecution totally failed to prove the factum of age of prosecutrix as below 16 years despite of the fact that she was above 19 years old on the day of incident.
18.PW.2 prosecutrix in her statement u/sec. 164 Cr.P.C Ex.PW 6/A which is duly recorded by Ld. MM stated that on 10/9/07 at about 9 P.M she along with her sister Maya had gone to Welcome colony Market for purchasing vegetable and when they were returning after purchasing the vegetable in the way accused Parveen met them and asked them to accompany him. He also stated that he had sought permission from her father. Accused Parveen took her in a field removed her clothes and his own clothes and committed rape on her two times and thereafter accused left her towards police post Janta colony at about 4 a.m and thereafter she reached at the door of her house from there, her father took her to the police post and got her statement recorded.
19.There are material contradictions in the statement of police officials as well as in the public witnesses who have also been discussed. Prosecutrix in her statement u/sec. 164 Cr.P.C submitted that accused left her near police post Janta colony at about 4 a.m i.e on 11/9/07 from there she reached to the door of his house and from there her father took her to the police post and got her statement recorded. But PW9 Const. Jai veer, 20 21 FIR NO. 663/07, P.S WELCOME , U/SEC.363/ 376 IPC, ST VS PARVEEN KUMAR PW.10 ASI Brij Pal submitted that on 1/9/07, PW.9 along with PW.10 ASI Brij Pal, Lady Const. Santosh, complainant Raju went to Rahul Garden Behta and on reaching there they came to know that accused and the prosecutrix both can be apprehended at Bus Stand Anand Vihar. From there they all reached to Bus Stand Anand Vihar and on the identification of Raju, father of the prosecutrix accused and prosecutrix both were apprehended at Bus Stand Anand Vihar .
20.Prosecutrix was handed over to Lady Const. Santosh and accused was handed over to PW.9/Const. Jai veer. But during the cross-examination the prosecutrix stated that no lady constable was present at the time of her apprehension and in her statement u/sec. 164 Cr.P.C prosecutrix no where stated that she and the accused both were apprehended by the police officials from Bus Stand Anand Vihar , however, she of her own reached at the door of her house and her father took her to the police post and she got her statement recorded. It clearly goes to show that testimony of prosecutrix as well as public witnesses does not inspire confidence. During cross-examination of PW.9 Const. Jai veer he stated that the site plan of the place of occurrence was prepared by the IO but he admited that no site plan was available on record. PW.9 further stated that pant of accused was taken in possession by Doctor at GTB hospital and handed over to him but PW.10 ASI Brij Pal/IO stated that accused was not wearing underwear 21 22 FIR NO. 663/07, P.S WELCOME , U/SEC.363/ 376 IPC, ST VS PARVEEN KUMAR and was only wearing the trouser and another trouser could not be made available before the doctor therefore, pant could not be seized by the doctor. He also stated that he had made an arrangement of another pant in the police station and seized the pant of the accused which was worn by the accused at the time of incident.
21.Prosecutrix was also medically examined by Dr. Anshul Department of OBS & Gynae and she gave her findings as under:
"Patient had not taken bath since the incident. On examination per abdomen-findings did not suggest any abnormality. On local examination the hymen was found to be torn. There was no bleeding from any hymenal edge. No fresh tear. On per vaginal examination the OS was closed, uterus was anteverted, normal size, bilateral fornices were free".
22.She further stated that she also seized public hairs and two vaginal slides prepared from the posterior fornix. These were handed over to the woman constable duly sealed with the seal of hospital and the MLC prepared by doctor is Ex.PW 11/A. 22 23 FIR NO. 663/07, P.S WELCOME , U/SEC.363/ 376 IPC, ST VS PARVEEN KUMAR
23.In view of the opinion given by the doctor and on considering the testimony of prosecutrix the accused has committed rape two times in a field and one time in the factory clearly goes to show that it was a case of complete vaginal penetration and if age of the prosecutrix is to be considered as 13 years old and she was not habitual of having sexual intercourse in such circumstances the possibility of bleeding/inflammation on the hymeneal edged and on Lebia minora and Lebia majora cannot be ruled out but no fresh injury was noticed and no fresh tear was noticed which clearly goes to show that either her testimony does not improve confidence or she was habitual of having sexual intercourse or she was not raped by the accused on the day of alleged incident.
24.On perusal of the result of analysis given by Ms.Anita Chhari Sr. Scientific Assist.(Bio) Forensic Science Laboratory Govt. of NCT of Delhi, wherein it is observed as under:
i. Human semen was detected on exhibit 1,2,4 and 6
Exhibit.1 : One Microslide having faint smear.
Exhibit.2: One miocroslide having faint smear.
Exhibit.4: One underwear.
Exhibit.6: One Pant.
ii. Semen could not be detected on exhibit '3'
a few strands of black hair described as 'pubic hair of Mamta' iii. Blood was detected on exhibit '5'.
Gauze cloth piece having brown stains described as'blood 23 24 FIR NO. 663/07, P.S WELCOME , U/SEC.363/ 376 IPC, ST VS PARVEEN KUMAR sample' iv Hair could not be detected on exhibit '6' (i.e one pant).
1. Aforesaid opinion given by Ms.Anita Chhari Sr. Scientific Assist.(Bio) Forensic Science Laboratory Govt. of NCT of Delhi if appreciated in view of the investigation conducted by the IO, testimony of prosecutrix and the testimony of police officials wherein it appears that PW.9 stated that pant of the accused was taken in possession by the doctor in the hospital on the other hand IO stated that pant of accused was taken in possession at police station. In such circumstances the possibility of creating false evidence of presence of semen on Ex.'6' i.e pant cannot be ruled out. It is the case of the prosecution that pubic hair was also taken in possession by the doctor and it is also alleged that she had not taken bath but no semen was detected on pubic hairs. However, it appears to have been admitted that underwear which is in the natural sense covers the pubic hairs of the prosecutrix and in such circumstances possibility of false implication of the accused cannot be ruled out. Ld. counsel for accused also placed reliance on a decided case cited as "BANSPATI MANGAL VS STATE OF MADHYA PRADESH 1963(2) Crl. L. J 354 wherein it is observed as under:
"In every case of rape or kidnapping, the age of the prosecutrix must be positively established. Thorough medical examination should be resorted 24 25 FIR NO. 663/07, P.S WELCOME , U/SEC.363/ 376 IPC, ST VS PARVEEN KUMAR to for that purpose and all other evidence which may be available must be brought before the court."
It is further observed that "Where there was no evidence of X-ray examination in spite of the suggestion in the doctor's certificate, and the investigating officer, when examined in the trial court, found it convenient not to say anything to explain this serious omission, benefit of doubt must got to the accused."
2. In view of the observations given in the aforesaid cited case and taking into consideration the facts and circumstances of the case and the evidence adduced by the prosecution requested for the acquittal of the accused.
3. On the contrary Ld. Addl. PP for the state submitted that prosecution has succeeded in proving its case beyond reasonable doubt and also produced sufficient evidence in support of its case. PW.2 Mamta/prosecutrix in her statement specifically stated that on 10/9/07 accused Parveen took her on his cycle on the pretext of providing good things but instead of providing good things, accused took her to a park, purchased ice cream and then took her to a jungle/field and committed rape on her. This fact has been further corroborated by the prosecutrix in her statement recorded u/sec. 25 26 FIR NO. 663/07, P.S WELCOME , U/SEC.363/ 376 IPC, ST VS PARVEEN KUMAR 164 Cr.P.C recorded by Ld. MM wherein she stated that accused took her in a field, removed her clothes, and his own clothes and committed rape on her two times which clearly goes to show that prosecutrix has testified on oath that she has been rapped by the accused.
4. With regard to her age prosecution produced the age proof certificate Ex.PW 3/A issued by the Principle of Primary school Subhash Park Delhi( First Shift) wherein she has specifically deposed that as per school record the date of birth of Kumari Mamta is 01/4/95 and the offence was committed in the year 2007 which clearly goes to show that at the time of commission of rape prosecutrix was less than 13 years and considering the age of the prosecutrix consent as pleaded by Ld. counsel for the accused have no relevancy at all. It is further submitted that on perusal of opinion of senior scientific officer in his report Ex.PW 10/B wherein human semen was detected on exhibit 1 and 2 (both having faint smear) on the underwear worn by the prosecutrix and on the pant worn by the accused at the time of commission of offence. There are sufficient scientific evidence brought on record by the prosecution in corroboration of the testimony of prosecutrix.
5. It is further pleaded that presence of blood/inflammation or any fresh injury is not a condition precedent in establishing the case of rape against the 26 27 FIR NO. 663/07, P.S WELCOME , U/SEC.363/ 376 IPC, ST VS PARVEEN KUMAR accused persons. However, slide penetration without indicating any injury in the private part of the prosecutrix is sufficient to prove the offence of rape against the accused.
6. The testimony of PW.2 prosecutrix is further corroborated by PW.5 her sister Maya. She stated that accused took her sister Mamta with him in her presence and she also narrated this story to her father( Raju/complainant) who had been examined as PW.1 and PW.1 further corroborated the testimony of PW.2 and PW.5 and he also stated that on 10/9/07 his daughter Mamta told him that accused Parveen took her daughter Mamta with him which clearly goes to show that prosecutrix was last seen in the company of accused on the day of incident and when she was apprehended by the police and was immediately got medically examined, presence of semen clearly indicates that she has been rapped by the accused as no person other than the accused was seen with her and accused also failed to explain that any other person except the accused was present with the prosecutrix. In such circumstances the factum of commission of rape upon the prosecutrix by the accused is totally established. It is further submitted that doctor who had medically examined the prosecutrix clearly opined that hymen was torn. Prosecutrix has not taken bath, her underwear was taken in possession by her and duly sealed with the seal of hospital and factum of sealing the underwear is further 27 28 FIR NO. 663/07, P.S WELCOME , U/SEC.363/ 376 IPC, ST VS PARVEEN KUMAR proved by the Scientific Assist., who had analyzed the exhibits and specifically opined that humen semen was detected on exhibit (4) i.e one underwear allegedly worn by the prosecutrix at the time of incident and same group of semen i.e A group was detected on the pant allegedly recovered by the IO and marked Exhibit 6 and the aforesaid scientific evidence coupled with the testimony of prosecutrix alone is sufficient to prove the case of the prosecution. She also placed reliance on a decided case cited as "RAJESH KUMAR TIWARI VS STATE 2010 (1) JCC 500 wherein it is observed as under:
"Shaky testimony of prosecutrix- The testimony of prosecutrix particularly of a minor girl coming from poorest strata of the society having very little education and sustaining herself by begging- Cannot be discarded merely on account of her not being consistent throughout her examination- The duty of the court is to careully analyse the evidence of such a witness albeit with caution and look after corroboration of her testimony."
It is further observed that " presence of blood on the Salwar of the prosecutrix, coupled with presence of semen on her salwar and shirt and underwear as well as on the pant of the appellant, when examined in the light of deposition , leaves no reasonable doubt that the appellant had 28 29 FIR NO. 663/07, P.S WELCOME , U/SEC.363/ 376 IPC, ST VS PARVEEN KUMAR committed rape on the person of the prosecutrix and that is why the blood was found on the salwar of the prosecutrix and semen was found on her clothes as well as pant of the appellant. In the aforesaid case it is also observed that even if the deposition of the prosecutrix is all together excluded from the consideration there is adequate circumstantial evidence on record, in the form of PW.7 coupled with the presence of semen and blood, as detailed above, to prove the guilt attributed to the appellant.
It is also observed that absence of marks of injury would not necessarily rule out commission of rape in each and every case. Absence of marks of injury is only one of the factors to be taken into consideration while evaluating the evidence produced by the prosecution. Since the prosecutrix a young orphan girl aged about 12-14 years, had been intimated by the appellant, before he took her to the park and there was no other person in the part at that time, she was not in a position to put a tough resistance. A perusal of the MLC of the prosecutrix would show that though no external mark of the injury was found present, the vaginal was other wise soft and her hymen was 29 30 FIR NO. 663/07, P.S WELCOME , U/SEC.363/ 376 IPC, ST VS PARVEEN KUMAR found torn. There was also a fresh tear and her vagina could admit one finger. Dilatim of the vagina also indicates recent intercourse. This coupled with the presence of the blood on the Salwar of the prosecutrix and presence of semen on her clothes as well as on the pant of the accused, when viewed in the light of the fact that appellant as well as the prosecutrix were taken to the police station and then the hospital directly from the spot , leaves no reasonable doubt about sexual intercourse with the prosecutrix."
7. Ld. Addl. PP for the state also placed a reliance upon a decided case reported as " STATE OF MAHARASHTRA VS GAJNAN @ HEMANT JANARDHAN WANKHEDE 2009 I AD(Cr.)(S.C) 126 wherein it is observed as under:
"Undisputedly, the school record revealed the date of birth of the victim to be 4.6.1976. This was the position as indicated in the school leaving certificate and the school register. The High Court noted that in the school register the date of birth was indicated to be 4.6.1976. It also noticed that the father of the victim stated that the girl was 14 years old. The High Court held that the correct date of 30 31 FIR NO. 663/07, P.S WELCOME , U/SEC.363/ 376 IPC, ST VS PARVEEN KUMAR birth is not recorded and only the school leaving certificate indicated that the date of birth of victim was 4.6.1976. The evidence of the witnesses indicated that the entry was made on the basis of the horoscope. The High Court held that since the horoscope was not produced the prosecution has failed to establish its case. No reason has been indicated by the High Court to discard the documentary evidence produced i.e school leaving certificate and the school register."
8. PW.4 corroborated the factum of recording the statement of prosecutrix u/sec. 164 Cr.P.C. PW.6 further corroborated the factum of recording of statement of the prosecutrix Ex.PW 2/B by him. PW.7 proved the FIR as Ex.PW 7/A recorded by him on the basis of the statement of PW.1 Raju. PW.8 proved the factum of depositing of exhibits in the office of CFSL Rohini. PW.9 proved the factum of joining the investigation with the IO/PW.10 and they both corroborated the testimony of all the other witnesses also. PW.11 proved the factum of medical examination of prosecutrix vide his report Ex.PW 11/A. PW. 12 Dr. P.K Saha proved the factum of competency of accused to commit sexual intercourse and in view of the testimony of all the witnesses and the observation given by their Lordship in the aforesaid decided case prosecution has been able to prove its case against the accused for the offence as alleged. 31 32 FIR NO. 663/07, P.S WELCOME , U/SEC.363/ 376 IPC, ST VS PARVEEN KUMAR
9. After hearing the arguments on behalf of ld. counsels for both the parties I carefully perused the evidence adduced by the prosecution and the observations given by their Lordship in the aforesaid decided cases wherein it establishes as follows:
a).PW.2 prosecutrix in her statement u/sec. 164 Cr.P.C stated that she along with her sister proceeded to market for purchasing vegetable at about 9 P.M. On the other in the examination in chief before the court she stated that she along with her sister proceeded to market at about 7 P.M and during her cross-examination by Ld. Addl. PP she stated that accused met her in the market at about 6 P.M. It is further established that PW.2 in her statement u/sec. 164 Cr.P.C stated that after purchasing the vegetable when she along with her sister(PW.5) returning to their house in the way, accused met them but PW.5 deposed before the court otherwise and stated that when they both were present in the market and before purchasing the vegetable , accused met them. It is further established that PW.5 stated that when they left their house, for the market none of their family member was present 32 33 FIR NO. 663/07, P.S WELCOME , U/SEC.363/ 376 IPC, ST VS PARVEEN KUMAR at home. However, PW.2 prosecutrix and her father PW.1 deposed that two younger brothers of the prosecutrix were present in the house and all these contradictions raises a serious doubt upon the credibility on testimony of prosecutrix as well as other public witnesses examined by the prosecution in support of its case.
b). Prosecutrix in her cross-examination subsequently stated that she of her own accompanied the accused and also directed her sister(PW.5) to disclose this fact to the family members. She also admitted that she was siting on the carrier of the cycle when accused took her to the park as well as in the field or factory where she was allegedly raped. She also admitted that many persons were also present in the park and also met in the way when she was going towards Metal Road. Admittedly she was sitting on the carrier of the cycle. In view of these facts it is established that prosecutrix of her own joined the company of the accused and went with him. Her testimony is further became unworthy of credit on the ground that in her cross-examination she admitted that accused left her near the police post 33 34 FIR NO. 663/07, P.S WELCOME , U/SEC.363/ 376 IPC, ST VS PARVEEN KUMAR Janta colony at about 4 a.m and from where she went to the door of her house there he father met her and took her to the police station where her statement was recorded but as per prosecution version PW.9 and PW. 10 along with Lady constable Santosh and father of the prosecutrix went to Behta and from there they came to know that accused and prosecutrix can be apprehended at Anand Vihar Bus Stand and on receipt of this information police officials along with father of the prosecutrix reached at Anand Vihar Bus Stand and apprehended the accused as well as prosecutrix which again raises a serious doubt upon the investigation conducted by the IO as well as testimony of prosecutrix and her father.
c).One of the police witness stated that pant of the accused was taken in possession by the doctor in the GTB hospital however IO stated that pant of the accused was taken in possession by him in the police station. In such circumstances the possibility of false implication of the accused while putting the semen of the accused cannot be ruled out . The absence of semen on the pubic hair allegedly collected by the doctor at the time 34 35 FIR NO. 663/07, P.S WELCOME , U/SEC.363/ 376 IPC, ST VS PARVEEN KUMAR of medical examination of prosecutrix again raises a serious doubt upon the presence of semen on the underwear allegedly worn by the prosecutrix.
d). It is further established that no specific evidence with regard to the age of the prosecutrix is brought on record by the prosecution. The case of the prosecution is totally based on a school leaving certificate produced by PW.3 wherein age of the prosecutrix was mentioned as 01/4/1995.
PW.1 father of the prosecutrix stated that at the time of seeking admission of his daughter her date of birth was disclosed by her mother and in the present case neither the mother of the prosecutrix produced nor any documentary evidence on the basis of which date of birth of prosecutrix was disclosed at the time of seeking admission are brought on record. It is admitted the case of the prosecution that not even the ossification test was got conducted despite of the fact that suggestions were given by the Ld. counsel for accused that prosecutrix was above 19 years of age on the date of commission of offence.
35 36 FIR NO. 663/07, P.S WELCOME , U/SEC.363/ 376 IPC, ST VS PARVEEN KUMAR
10. In view of the above said established fact I carefully analyzed the facts of this case and the observations given in the aforesaid decided case. In Rajesh Kumar Tiwari's case the presence of blood and the semen on the garments of the prosecutrix were held as sufficient to prove the guilt of the accused. But in the present case neither the presence of blood nor any fresh injury on the private part of the prosecutrix were noticed by the doctor during her medical examination, despite of the fact hat as per statement of prosecutrix, she was raped three times. This fact is also not brought on record that she was habitual of sexual intercourse and in case her age is to be taken as 13 years in such circumstances the possibility of presence of blood/inflammation on the private parts of the vagina cannot be ruled out. Therefore, observation given by their Lordships in Rajesh Tiwari's case are not applicable to the facts of the case in hand.
11.In another case "State of Maharashtra Vs Gajanan @ Hemant Janaradhan Wandkhede" school record reveals the date of birth of prosecutrix as 4/6/76 and as per school leaving certificate her age was Fourteen years ten months and seventeen days at the time of incident, but as per ossification test her age was opined as 14-16 years. In this case it has also been brought on record that age of the prosecutrix was disclosed by her parents on the basis of horoscope and in the given circumstances it 36 37 FIR NO. 663/07, P.S WELCOME , U/SEC.363/ 376 IPC, ST VS PARVEEN KUMAR was held that no reason has been indicate by the Hon'ble High Court to discard the documentary evidence produced i.e school leaving certificate and school register. But in the present case PW.3(principle of the school) specifically stated that date of birth of prosecutrix was recorded at the instance of parents without any documentary proof therefore, in the case in hand no basis to disclose the date of birth of the prosecutrix was brought on record however, principle of the school clearly stated that the date of birth was recorded only at the option of the parents of the prosecutrix. PW.1 father of the prosecutrix stated that mother of the prosecutrix accompanied her at the time of seeking admission. Neither the mother of the prosecutrix was examined nor the prosecutrix or her father disclosed the date of birth of the prosecutrix despite of the fact that suggestions were put to the prosecutrix, father of the prosecutrix that the age of the prosecutrix as 19 years. Ossification test was also not conducted and in the given circumstances coupled with the testimony of prosecutrix as well as other witnesses, It cannot be said that sufficient evidence with regard to the age of the prosecutrix is brought on record by the prosecution, therefore, facts of the case upon which Ld. Addl. PP placed her reliance are not similar to the facts of this case in hand.
12.In view of the totality of the circumstances discussed above and also taking into consideration the evidence adduced by the prosecution as well 37 38 FIR NO. 663/07, P.S WELCOME , U/SEC.363/ 376 IPC, ST VS PARVEEN KUMAR as observations given by their Lordships, I am of the considered view that prosecution failed to prove its case beyond reasonable doubt against he accused persons. In such circumstances I am not considered view that accused has become entitled to be given him the benefit of doubt.
13.Accordingly accused Parveen Kumar s/o Salekh Chand is hereby acquitted for the offence u/sec. 363/376 IPC. As the accused is in judicial custody, he be released from the jail forthwith if not wanted in any other case. File be consigned to Record Room.
(B.S. CHUMBAK) ASJ-3/North East District KKD/Delhi Announced in the open court Delhi Dt. 24th Day of April 2010.
38 39 FIR NO. 663/07, P.S WELCOME , U/SEC.363/ 376 IPC, ST VS PARVEEN KUMAR 24.4.10 PRESENT : Ms. Neelam Narang, Ld. Addl. PP for the state.
Accused produced from J.C Sh. Dassa Ram Advocate/Amicus Curaie on behalf of accused. Vide separte order accused Parveen Kumar s/o Salekh Chand is hereby acquitted for the offence u/sec. 363/376 IPC. As the accused is in judicial custody, he be released from the jail forthwith if not wanted in any other case. File be consigned to Record Room.
ASJ-3 NE DISTT. KKD/DELHI 24.04.2010 39 40 FIR NO. 663/07, P.S WELCOME , U/SEC.363/ 376 IPC, ST VS PARVEEN KUMAR 40