Delhi District Court
State vs . Vipin Nahar @ Dev on 26 August, 2014
1
FIR No. 171/10
PS - Shahbad Dairy
IN THE COURT OF SH. MAHESH CHANDER GUPTA :
ADDITIONAL SESSIONS JUDGE : SPECIAL FAST TRACK
COURT : NORTHWEST DISTRICT : DELHI
SESSIONS CASE NO. : 189/13
Unique ID No. : 02404R0289132010
State Vs. Vipin Nahar @ Dev
S/o Sabha Singh
R/o H. No. 152,
Shiv Shankar Gali,
Vijay Nagar Colony,
Bawana, Delhi.
FIR No. : 171/10
Police Station : Shahbad Dairy
Under Sections : 376/306 IPC
Date of committal to session Court : 10/11/2010
Date on which judgment reserved : 16/08/2014
Date on which judgment announced : 26/08/2014
J U D G M E N T
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1. Briefly stated the case of the prosecution as unfolded by the report under section 173 Cr.P.C. is as under : On 17/07/2010, on receipt of a PCR call, DD No. 22A was recorded at PS Shahbad Dairy which was handed over to HC Darvesh for appropriate action. But the girl/prosecutrix (name withheld being a case u/s 376 IPC) D/o Daya Kishan R/o 382, Village Shahbad, Daulat Pur did not want any action. On the same day(17.07.2010), the prosecutrix reached at Rohtak Railway Line Kishan Ganj and due to she being injured on the railway track, the proceedings were carried out by ASI Suresh Chand PP Kishan Chand of DRP and the documents of the said proceedings were received in PS Shahbad Dairy. On 07/08/2010, one written complaint of the prosecutrix sent by post was received in the police station addressed to SHO PS Prahladpur, Bawana Road, New Delhi the contents of which is to the effect that, she lives with her parents in Village Shahbad Daulatpur and is the student of Rajkiya Seh Siksha Uchch Madhyamik Vidyalaya, Shahbad, Daulatpur, Delhi (Govt. CoEd. Secondary School, Shahbad, Daulatpur, Delhi) and is the student of 10th class. Her roll no. is '45' and section is 'A'. (Mein Shahbad Daulatpur gaon mein apne mata pita ke saath rahti hoon aur Rajkiya Sah Shiksha 2 of 152 3 FIR No. 171/10 PS - Shahbad Dairy Uchch Madhyamik Vidyalaya, Shahbad, Daultapur ki kaksha dasvi ki chatra hoon. Mera role no. 48, Section A hai). In her village there is one boy named Dev who runs STD and mobile shop who has been harassing/teasing her for the last four years. Whenever she goes to school and comes back to her house, he after stopping her on the way had been kept on pressurizing her and had made a promise for the marriage with her and had told that, "when you will become adult, I, in front of Samaaj and by rites and customs, will perform the marriage" and now when she has attained adulthood, she told him that she wanted to get him meet with her parents. (Mere gaon mein Dev naam ka ek ladka jo ki STD aur Mobile ki dookan chalata hai, mujhe chaar saal se tung karta aa raha ha. Jab bhi mein school jaati hoon ya ghar vapis aati hoon to mujhe rastey mein rok kar dabav daalta aa raha hai aur mujh se shadi ka vada kiya aur kaha ki jab tum balig ho jaogi tab mein samaaj ke samne reeti riwaj se shadi kar loonga. Mein ab balig ho gayi hoon to maine kaha ki ab mein tumko apne mata pita se milvana chahti hoon). On this, he became too much angry and threatened her to kill and he on the false promise of marriage committed galat kaam with her, due to which she is suffering from mental tension and is also not able to 3 of 152 4 FIR No. 171/10 PS - Shahbad Dairy concentrate on her studies. (Iss baat par veh kaafi naraz ho gaya aur mujhe jaan se maarne ki dhamki di aur mujhse jhootha vada karke mere sath galat kaam kiya. Iss vajah se mein dimagi taur se paresehan rahti hoon aur padhai mein bhi mun nahin lagta.) He had also told her, if she disclosed about their relations (physical relations established) then, he will defame her in the society. He had also taken her obscene nude photographs in her unconscious condition. He will not let her able to live and for life in the Samaaj (main tujhe samaaj me jeene veh rahne ke kaabil nahi chhodunga) and told to keep her mouth shut and do whatever he says, and what is there in marriage in life. (Aur yeh bhi kaha ki hamare jo sambandh hain, uske baare mein agar kisi se jikr kiya to tujhe samaj mein badnaam kar dega. Maine teri behoshi ki haalat mein nangi tasveeren bana rakhi hain aur tujhe samaaj mein jeene ya rehne ke kabil nahin chodega aur apna muh bund rakh. Jaisa mein kahta hoon, waisa karti rah aur zindagi mein shadi vivah mein kya rakha hai.) For this reason she took a decision on 17/07/2010 when no respect will be left for her in Samaj and her parents will not be able to sit/command respect in the Samaj, then for this reason she left her home to kill herself under the wheels of the train. In this incident except for Dev no one else is 4 of 152 5 FIR No. 171/10 PS - Shahbad Dairy responsible. (Issi vajah se maine 17/07/2010 ko faisla liya ki samaj mein meri izzat nahin rahegi aur mere maa baap samaj mein bethne layak nahin rahenge to mein rail ke neeche katne ke liye ghar se nikal gayi aur iske liye Dev ke alawa aur koi jimmedaar nahin hai). Legal action be taken against Dev so that she may get peace. By this time, her one leg has been cut off and the other leg is also in very bad condition and nothing can be said about it and presently she is admitted in the Safdarjung Hospital. (Dev ke khilaf kanooni karravahi ki jaye taki mujhe sukoon mil sake. Iss samay meri ek taang kat gayi hai aur doosri taang bhi buri haalat se gujar rahi hai, kuch nahin kaha ja sakta. Iss samay mein Safdarjung Hospital mein dakhil hoon.) On finding that an offence u/s 376 IPC appeared to have been committed, ASI Ashok Kumar, got registered the case and the investigation was proceeded with. During the course of investigation, ASI Ashok Kumar recorded the statements of the witnesses. On the identification of Daya Kishan father of the prosecutrix, accused Vipin Nahar @ Dev was arrested on 25/08/2010. Accused Vipin Nahar @ Dev was got medically examined and his MLC was obtained. Statements of the witnesses were recorded. Photocopy of the MLC No. 1057 of Safdarjung Hospital of prosecutrix was obtained 5 of 152 6 FIR No. 171/10 PS - Shahbad Dairy from ASI Suresh Chand. Report of gynae test of prosecutrix was obtained after getting it conducted from Safdarjung Hospital. On the basis of the statements of the prosecutrix and her parents Section 306 IPC was added in the case Upon completion of the necessary further investigation challan for the offences u/s 376/306 IPC was prepared against accused Vipin Nahar @ Dev and was sent to the court for trial.
2. Since the offences u/s 376/306 IPC are exclusively triable by the Court of Session, therefore, after compliance of the provisions of Section 207 Cr.P.C., the case against accused Vipin Nahar @ Dev was committed to the Court of Session u/s 209 Cr.P.C.
3. Upon committal of the case against accused Vipin Nahar @ Dev to the Court of Session, after hearing on charge prima facie a case U/s 363/376 IPC was made out against accused Vipin Nahar @ Dev. Charge was framed accordingly which was read over and explained to accused to which he pleaded not guilty and claimed trial.
6 of 152 7 FIR No. 171/10 PS - Shahbad Dairy
4. In support of its case prosecution has produced and examined 16 witnesses. PW1 - Prosecutrix (name withheld), PW2 - HC Jaibir Singh, PW3 - Sh. Ved Parkash, PW4 - Sh. Daya Kishan @ Lal, PW5 - Dr. Poonam, working in Gynae Department, Safdarjung Hospital, New Delhi, PW6 - HC Darvesh, PW7 - ASI Suresh Chand, PW8 - Dr. Ajay Dalal, Bhagwan Mahavir Hospital, Pitam Pura, Delhi, PW9 - Dr. Virender Kumar, Maharishi Balmiki Hospital, Pooth Khurd, Delhi, PW10 - Smt. Laxmi Devi Devi, PW11 - Constable Raj Kumar, PW12 - W/Constable Rekha, PW13 - Constable Rajesh, PW14 - Sh. K. D. Shankaran, Record Clerk, Death and Birth Registration Department, Sector - 5, Rohini Zone, MCD, PW15 - Mr. J. D. Pal, Ambulance Officer, CATS and PW16 ASI Ashok Kumar.
5. In brief the witnessography of the prosecution witnesses is as under : PW1 - Prosecutrix (name withheld), is the victim who deposed regarding the incident and proved her complaints made to the 7 of 152 8 FIR No. 171/10 PS - Shahbad Dairy police Ex. PW1/A, Ex. PW1/B, Ex. PW1/C signed by her at points 'A'.
PW2 - HC Jaibir Singh, is the duty officer who deposed that on 25/08/2010, he was posted as Duty Officer at PS Shahbad Dairy and his duty hours were from 04:00 p.m. to 12.00 night. At about 7:15 p.m., ASI Ashok himself handed him over a rukka for registration of FIR and he (PW2) got recorded the FIR through Computer Operator. He has brought the original FIR (OSR). Copy of FIR is exhibited as Ex. PW2/A. He had also made endorsement on rukka which is now encircled in red and exhibited as Ex. PW2/B. PW3 - Sh. Ved Parkash who deposed that he knows accused Vipin present in the Court (correctly identified). He (accused) used to run his mobile shop in his (PW3) tenanted Shop No. 65/2, Shahbad Daulatpur, Delhi for the last four years prior to the incident. He (PW3) had learnt that report was lodged and Police had come at his shop in which accused was running his mobile shop. He (PW3) had learnt that Prosecutrix (name withheld) who was residing in their neighbourhood was involved with the accused and accused was having illicit relations 8 of 152 9 FIR No. 171/10 PS - Shahbad Dairy with her. After that Police case was registered. He (PW3) had also learnt that Prosecutrix (name withheld ) had jumped in front of train and her both legs were imputed (amputated).
PW4 - Sh. Daya Kishan @ Lal, who deposed that he has three children. Prosecutrix (name withheld) is the youngest one. Now she is of 1718 years of age. On 17/07/2010 he was present at his Tea Stall which is installed at bus stand of Sector 1617, Rohini, Delhi. At about 3:30 p.m. one driver had informed him that his daughter/prosecutrix (name withheld) was having quarrel with accused in the village in front of the STD Shop of accused. Accused was running his STD Shop in front of his street in which his house was situated. He does not know accused person but he had seen him running his STD Shop which is the only STD shop in their village, present in the Court correctly identify (identified). He immediately reached at the spot where he had seen that many public persons had already gathered and Police had also reached as they were called by his daughter by calling PCR. Ved Parkash in whose shop accused was tenant and was running his STD Shop was also present there. Altercation between prosecutrix (name 9 of 152 10 FIR No. 171/10 PS - Shahbad Dairy withheld) and accused were going on. He felt ashamed of the quarrel and Ved Parkash was also telling him that it is the question of their dignity and quarrel should be stopped. He consoled his daughter and sent her to her house and went to his shop. At about 56 p.m., he received a phone call from some railway Police official on his mobile and he was told that his daughter had met with an accident with the train. He immediately rushed at the Kishan Ganj Railway Station where such accident took place. He enquired from the railway Police officials and he was told that prosecutrix (name withheld) was sent to Bhagwan Mahavir Hospital. Himself, his elder brother and his wife with 23 neighbours reached at Bhagwan Mahavir Hospital. On 17/07/2010 prosecutrix (name withheld) was studying in 9th class in Govt. School in their village. In the Hospital he had seen prosecutrix (name withheld) was admitted in the Hospital and she was on bed and her one leg was amputated and other was having severe injuries. The condition was very bad. Two Police officials probably from Railway were there. They made some formal enquiries from him about prosecutrix (name withheld) and then they asked him to sign two blank papers on which signatures of prosecutrix (name withheld) were already there. He had sign on those 10 of 152 11 FIR No. 171/10 PS - Shahbad Dairy two blank papers and then they left from there. They remained in Hospital whole night and next morning prosecutrix (name withheld) was sent to Safdarjung Hospital. In Safdarjung Hospital prosecutrix (name withheld) remained admitted for many months where her operation and dressing were done. They came in the end of November, 2010. Prosecutrix (name withheld) was discharged from the Hospital. Even after that she was under treatment from that Hospital. When prosecutrix (name withheld) was shifted to Safdarjung Hospital after two days she had disclosed to his wife Laxmi Devi that accused Vipin was making physical relations (Najayaj) for last 34 years and was alluring her and induced her by saying that accused would marry prosecutrix (name withheld) when she will become major. His wife had disclosed all these facts to him and when he enquired from prosecutrix (name withheld) she had again disclosed all these facts to him. He went to PS - Prehlad Pur to lodge the report against accused Vipin but Police did not lodge his report. Many times he went to PS to lodge the report but they did not lodge the report. He appeared before DCP Outer District who sent him to ACP of their area. On the direction of DCP he was sent to SHO of the area and then only Police took action on his complaint. For one month 11 of 152 12 FIR No. 171/10 PS - Shahbad Dairy he roamed one door to another to lodge the report but nothing happened and his report was lodged only when he appeared before the DCP. He has brought the received copy of his complaint which he had made to DCP, Rohini. Same is retained on record now Ex. PW4/A. IO of the case came to Safdarjung Hospital on 20/08/2010 and recorded the statement of prosecutrix (name withheld). Prosecutrix (name withheld) had given her written complaint. At that time he was not present in the Hospital. His wife Laxmi Devi was there. On 25/08/2010 accused present in the Court was arrested on his identification. He had signed documents of his arrest. The arrest memo is Ex. PW4/B and personal search memo is Ex. PW4/C bear his signatures at point 'A'. His daughter attempted to commit suicide by throwing herself in front of moving train as she was ashamed with what had happened with her and because of conduct of accused. He had also handed over the photocopy of date of birth certificate of MCD with respect to the age of his daughter. Her date of birth is 17/08/1991. Photocopy of birth certificate was given by him to Police. The same is already on judicial record. The same is mark 'A' which is now Ex. Mark PW4/D. In the Safdarjung Hospital during admission period of his daughter prosecutrix (name withheld) her 12 of 152 13 FIR No. 171/10 PS - Shahbad Dairy photographs were also got done. Photographs of STD Shop of accused was also got done by the Police. Photographs are already on judicial file. The same are mark Ex. PW4/E1 to Ex. PW4/E5. When his daughter was in Safdarjung Hospital he went to PS - Prehlad Pur and given two complaints on behalf of prosecutrix (name withheld) on different dates. The same are already Ex. PW1/A and Ex. PW1/B. PW5 - Dr. Poonam, who deposed that on 11/09/2010, she was working as Sr. Resident in Safdarjung Hospital, New Delhi. On that day she had examined prosecutrix (name withheld) D/o Shri Daya Kishan, Age 18 years for rape. She came with the alleged history of affair with a known boy (Dev) for last four years with history of sexual intercourse for last three years. She was having history of last intercourse in January, March, 2010. On examination patient was found conscious, cooperative and there was no external signs of injury. On gynae examination labia majora was found normal, no bruises, no external signs of injury and hymen was not intact. Left thigh of the patient was amputated and dressing was present over right thigh and leg. She (PW5) had advised HIV and HBS AG Tests and urine pregnancy test 13 of 152 14 FIR No. 171/10 PS - Shahbad Dairy was also done which came out to be negative. She (PW5) has seen attested photocopy of OPD Paper bearing No. GRR27088. The same is now Ex. PW5/A, bearing her signatures at point 'A'. This document was filled be her and bear her signatures and stamp at point 'A'.
PW6 - HC Darvesh, who deposed that on 17/07/2010 on receipt of DD no. 22A, he reached at village Shahbad, Dev Electronics. He had seen that some little altercation was going on between one girl/prosecutrix (name withheld) and one boy namely Dev. After sometime, persons from the village had also gathered there. Parents of girl/prosecutrix (name withheld) had also come there. He (PW6) was told by the father of prosecutrix (name withheld) that it was a minor altercation and he had sent prosecutrix (name withheld) to her house with her mother. He (PW6) returned to the PS and no action was initiated. On 07/08/2010, one application was received by him. It was given by SHO, Shahbad Dairy for seeking legal opinion from the Prosecution Branch. After receipt of opinion, documents were handed over to the SHO. Attested copy of DD No. 22A is already on judicial record, same is now Ex. PW6/A. After his return from the spot, he 14 of 152 15 FIR No. 171/10 PS - Shahbad Dairy recorded DD No. 70B. Attested copy is on record and the same is now Ex. PW6/B. PW7 - ASI Suresh Chand, who deposed that on 17/07/2010, he was posted at PP Kishan Ganj as temporary Duty Officer. On that day, on receipt of DD No. 18, PP Kishan Ganj, attested copy of which is already on judicial record is now Ex. PW7/E he reached at Rampura Railway Line near Quarters before Punjabi Bagh Flyover. HC Devender was also with him. At the spot, they had learnt that injured girl was taken to Shakur Basti in a train. By that time, they had received call vide DD No. 19A Ex. PW7/F by which they had learnt that one girl was lying in an injured condition at Shakur Basti Railway Platform. They reached there and from there they had learnt that injured girl was sent to Mahavir Hospital by Cats Ambulance. They reached at Mahavir Hospital and found that prosecutrix (name withheld) D/o Daya Kishan was admitted in the Hospital and he made inquiry from that girl (prosecutrix). He recorded statement of prosecutrix (name withheld). Attested copy of which is already on judicial record, same is now, Ex. PW7/A. Sh. Daya Kishan, father of prosecutrix (name withheld) also met him in the 15 of 152 16 FIR No. 171/10 PS - Shahbad Dairy Hospital. He also recorded his statement. Attested copy of the same is already on judicial record and same is now Ex. PW7/B. He also collected the MLC and returned to the Police Post. On 24/07/2010, he again received DD No. 11 attested copy of which is already on judicial record Ex. PW7/H from Safdarjung Hospital and reached there where he found injured/prosecutrix (name withheld) admitted as she was referred from Bhagwan Mahavir Hospital. In the Safdarjung Hospital, again prosecutrix (name withheld) and her father had given their statements and he recorded the same. Attested copies of their statements are already on judicial record. Statement of prosecutrix (name withheld) dated 24/07/2010 is now Ex. PW7/C and that of her father Daya Kishan is now Ex. PW7/D. As the injured (prosecutrix) was under treatment, the DD Entries were kept pending and no action was initiated. After return to Police Post on 17/07/2010, he had lodged DD No. 21A, Ex. PW7/G. Later on, injured (prosecutrix) had made complaint in the Police Station. During course of investigation, his statement was recorded.
PW8 - Dr. Ajay Dalal, Bhagwan Mahavir Hospital, Pitam Pura, Delhi, who deposed that he has seen MLC No..1057/10, CR No. 16 of 152 17 FIR No. 171/10 PS - Shahbad Dairy 26554 of patient/prosecutrix (name withheld) D/o Daya Kishan, Age - 18 years, female dated 17/07/2010, patient was brought to casualty by Alpha - 7, CATS Incharge, J. D. Paul at 6:49 p.m. with alleged history of train accident, wheel passed over B/L lower limbs. Patient was conscious oriented. She was given treatment. On local examination there was total imputation of left thigh. No active bleeding, contamination, present, no distal pulsation. Deglowing injury over right thigh extending uptill knee, contamination present, no active bleeding distal pulse present. Patient was examined and referred to orthopardics specialist for further treatment. MLC was prepared by him (PW8), attested copy of the MLC is on judicial record and is now Ex. PW8/A bears his signature at point 'A'. He made his endorsement sign at point 'B' and endorsement at point 'C' of MLC Ex. PW8/A that patient was fit for statement.
PW9 - Dr. Virender Kumar, Maharishi Balmiki Hospital, Pooth Khurd, Delhi who deposed that he has seen MLC No. 3348/10/CR No. 15296/10 of Vipin Rao S/o Saba Ram, aged 23 years, Male dated 25/08/2010. Patient was brought by Constable Rajesh No. 1036 OD, for 17 of 152 18 FIR No. 171/10 PS - Shahbad Dairy medical examination. He had examined the patient. He was conscious oriented. There was no fresh complaints, no history of impotence and there was no external injury. He had also examined the patient locally and gave his observations in the MLC. He had also given opinion that there is nothing to suggest that the patient cannot perform sexual intercourse. MLC was prepared by him, same is now Ex. PW9/A, his opinion is at point 'A', encircled red.
PW10 - Smt. Laxmi Devi, mother of the prosecutrix who deposed that she has three children, two daughters and one son. Her elder daughter is married. Her son and her younger daughter are unmarried. Her daughter/prosecutrix (name withheld) is the younger daughter. Prosecutrix (name withheld) was born in the year, 1991. At the time of lodging of report, she was 18 years of age. In the year 2010, on 17th, month she does not remember, she was present at my house. During the noon hours, one child from the locality came to inform her that her daughter prosecutrix (name withheld) had called Police at the shop of accused Dev. She correctly identified the accused in the Court. Accused Dev was running his mobile shop in the house of Rajpal in 18 of 152 19 FIR No. 171/10 PS - Shahbad Dairy village Shahbad. She went to the shop of Dev. When she reached there, Police was already present there. Her husband Daya Kishan also came there. Her husband consoled her daughter prosecutrix (name withheld) and tried to pacify and also sent her back to their house. She also came back home with her daughter. Her husband had left for his shop from the shop of Dev. She engaged herself in the household and she thought that prosecutrix (name withheld) was inside the house. At about 34 p.m. when she had seen searched for prosecutrix (name withheld) inside the house and she was not found there in the house. She thought that she might have gone to the house of her Tai and would return after some time but she did not turn up. Her husband had received call from prosecutrix (name withheld) and she told about some accident and then, her husband went to Mahavir Hospital. In the late night, she had also gone to Mahavir Hospital. At that time, prosecutrix (name withheld) was unconscious. In the Hospital, she had come to know that prosecutrix (name withheld) had been cut on the railway track and she was having injuries in her both legs. She does not know how she had met with an accident. After one or two days, prosecutrix (name withheld) regained her consciousness and told her that accused Dev used to harass her and 19 of 152 20 FIR No. 171/10 PS - Shahbad Dairy for that reason, she had gone to kill herself. She does not know why accused Dev used to harass her daughter. Prosecutrix (name withheld) had told her that Dev used to tease her while she used to go to and return from School. Dev used to ask her for friendship and relations but prosecutrix (name withheld) refused saying that after 23 years, she will be major and then she can get married. She had also told her that accused assured prosecutrix (name withheld) that he would marry her when would be major but when prosecutrix (name withheld) told accused that she had become major, accused refused to marry her. (Objected to). Police never met her and never recorded my statement.
PW11 - Constable Raj Kumar, who deposed that on 25/08/2010 he was posted at PS Shahbad Dairy. On that day, on the instructions of DO HC Jaivir Singh, he had collected copy of FIR and rukka and handed over the same to ASI Ashok Kumar at Shahbad Daulatpur Village and returned to the Police Station.
PW12 - W/Constable Rekha, who deposed that on 17/07/2010 she was posted at PP Kishan Ganj, Railway Station. On that 20 of 152 21 FIR No. 171/10 PS - Shahbad Dairy day, she had prepared attested copy of DD No.18, DD No. 19 and DD No. 21 and on 24/07/2010, she had prepared attested copies of DD No. 8 and DD No. 11, PP - Kishan Ganj, Railway Station. She has brought the original DD Register (OSR). DD No. 18 is already Ex. PW7/E, DD No. 19 is already Ex. PW7/F, DD No. 21 is already Ex. PW7/G and DD No. 8 dated 24/07/2010 is now Ex. PW12/A and DD No. 11 dated 24/07/2010 already Ex. PW7/H. PW13 - Constable Rajesh, who deposed that on 25/08/2010, he was posted as PS Shahbad Dairy. On that day they reached at the house of Daya Kishan, H. No. 382, Shahbad Dairy and joined him in the investigation of the present case and went to village in search of accused Vipin @ Dev. At the instance of Daya Kishan accused Vipin @ Dev, present in the Court, correctly identified, was apprehended from the open road Bawana, opposite Arya Samaj Mandir when accused was going towards the village. Interrogation from accused was made by the IO. Accused Vipin @ Dev was arrested in the present case vide arrest memo already Ex. PW4/B and personal search memo is already Ex. PW4/C. Disclosure statement of accused Vipin @ Dev was recorded and 21 of 152 22 FIR No. 171/10 PS - Shahbad Dairy is now Ex. PW13/A. After medical examination of the accused he was brought to the lockup of S. P. Badli and he (PW13) had signed the documents of accused arrest.
PW14 - Sh. K. D. Shankaran, Record Clerk, Death and Birth Registration Department, Sector - 5, Rohini Zone, MCD, who deposed that he has brought the records of the birth of prosecutrix (name withheld) D/o Daya Kishan, R/o Village Sahibabad, Daulatpur. As per records of MCD, prosecutrix (name withheld) was born on 16/08/1991. Copy of MCD certificate is already on judicial file and is already mark PW4/D and same is now Ex. PW14/A (OSR).
PW15 - Mr. J. D. Pal, Ambulance Officer, CATS, who deposed that on 17/07/2010 he was posted as Incharge Alpha7. On that day, it was 6:10 p.m., he received the information from PCR regarding the railway accident at Shakur Basti Railway Station. Thereafter, he alongwith staff reached at Shakur Basti Railway Station where they found one lady/prosecutrix (name withheld) there in injured condition and her both legs were found imputed (amputated). Thereafter, they took 22 of 152 23 FIR No. 171/10 PS - Shahbad Dairy her to Bhagwan Mahavir Hospital and got admitted. He has brought Patient Assessment Proforma Register. The copy of the relevant entry is Ex. PW15/A (OSR) bearing his signature at point 'A'.
PW16 ASI Ashok Kumar is the Investigating Officer (IO) of the case, who deposed that on 25/08/2010, he was posted as Asstt. Sub. Inspector in PS - Shahbad Dairy. On that day, he received a written complaint of prosecutrix (name withheld) D/o Daya Kishan from the SHO and after discussion the matter with SHO, he prepared the rukka Ex. PW16/A, bearing his signature at point 'A'. He handed over the rukka to Duty Officer for registration of FIR. Thereafter, he alongwith Constable Rajesh proceeded for the investigation and reached at the house of the complainant i.e. House No. 382, Shahbad Daultpur where he met Daya Kishan, father of the prosecutrix and from there they reached at the shop of Dev but his shop was found locked. Constable Raj Kumar came at the spot and handed over to him the copy of FIR and original rukka. When they were proceeding towards Shahbad Dairy and when they reached near Arya Samaj Mandir, Shahbad Daultpur, complainant Daya Kishan pointed out towards accused Vipin @ Dev, 23 of 152 24 FIR No. 171/10 PS - Shahbad Dairy present in the Court. He was apprehended and interrogated. Accused Vipin @ Dev was arrested vide arrest memo Ex. PW4/B and his personal search was conducted vide memo Ex. PW4/C, both bearing his (PW16) signature at point 'B'. Accused made disclosure statement Ex. PW13/A, bearing his (PW16) signature at point 'B'. Accused was taken to Hospital where he was medically examined. After medical examination accused was sent to Police lockup. He (PW16) recorded the statement of witnesses. On 26/08/2010, he reached Safdarjang Hospital where prosecutrix (name withheld) was referred from Bhagwan Mahavir Hospital. He recorded the statement of Laxmi Devi, the mother of prosecutrix and she had produced two photographs of prosecutrix which are Mark 'A' & 'B' and on that day supplementary statement of prosecutrix (name withheld) was also recorded. On 03/09/2010, he recorded statement of Ved Prakash Rana, the owner of the shop of accused Vipin @ Dev. He also recorded supplementary statement of Daya Kishan. Daya Kishan also handed over to him the age proof of the prosecutrix which is already exhibited as Ex. PW14/A and photographs of the shop of Vipin which are Mark C1 to C5. He collected the photocopy of gynaecology report. He recorded statement of ASI Suresh 24 of 152 25 FIR No. 171/10 PS - Shahbad Dairy Chand, PP Kishan Ganj, Railway & Crime.
The testimonies of the prosecution witnesses shall be dealt with in detail during the course of appreciation of evidence.
6. It is to be mentioned that on 21/05/2012, Learned Counsel for the accused made a statement before the Learned Predecessor Court and had admitted the attested copy of MLC of prosecutrix already Ex. PW5/A and also admitted that the victim was studying in that School (Govt. CoEd. Sec. School, Shahbad Daulatpur, Delhi 110042) at that time and also admitted the certificate issued by that School. Certificate in view of admission was exhibited as Ex. P Adv. 1 and is reflected from the ordersheet dated 21/05/2012.
7. Statement of accused Vipin Nahar @ Dev was recorded u/s 313 Cr.P.C. wherein he pleaded innocence and false implication. Accused initially opted to lead defence evidence but did not lead any defence evidence.
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8. Learned Counsel for accused submitted that PW7 - ASI Suresh Chand recorded the initial version of PW1 - prosecutrix and PW4 - Daya Kishan, her father on 17/07/2010. Both the statements were got exhibited by the prosecution & PW7 in his examinationinchief exhibited the same and in his crossexamination he categorically stated that these statements were recorded by him without any addition or omission and also stated that it was an accident for which no one can be blamed as he recorded this fact in the statements. Both these statements Ex. PW7/A and Ex. PW7/B have not even a single allegation of rape rather it is stated in the statements that the injury was caused to the prosecutrix due to accident. Both these witnesses did not utter even a single word to the effect that the incident was caused because of the accused in any manner. The prosecution never challenged these statements or their veracity and no suggestion was given to PW7 that he wrongly fabricated these statements. Therefore, these statements become the case of the prosecution as the examinationinchief of PW7 went unchallenged, thus the prosecution can not run away from the initial version recorded by PW7. PW1 Prosecutrix and PW4 Daya Kishan 26 of 152 27 FIR No. 171/10 PS - Shahbad Dairy have made false statements before the Court that Police got signed blank papers from them on 17/07/2010 which fact is contradicted by the testimony of PW7. Neither PW1 nor PW4 made any complaint to the Police regarding their allegedly obtaining signature on blank paper by the Police on 17/07/2010 and for the first time in the Court deposition they stated this fact which can not be believed by any stretch of imagination. Even in the MLC prepared at Mahavir Hospital the prosecutrix was conscious, oriented and declared fit to made statement and the history given by train accident which is corroborated by the statements recorded by PW7. Learned Counsel for accused further submitted that DD No. 18 PP dated 17/07/2010 recorded at PP Kishan Ganj Railway stated that "Ek lady train se gir gayi hai". Same is exhibited as Ex. PW7/F. The MLC of the prosecutrix showing the history as train accident, which was prepared by the Doctor and the information of name, parentage, age, addresses were given by the prosecutrix as she was conscious and oriented at the time of preparation of the MLC. Therefore, it is clear that all the above details including history was given by the prosecutrix herself as no other person could give the above details. PW7 made inquiries from PW1 and PW4 and recorded their statements as Ex.
27 of 152 28 FIR No. 171/10 PS - Shahbad Dairy PW7/A and Ex. PW7/B and in both statements it is categorically mentioned that it was an accident. PW7 made DD Entry No. 21 PP dated 17/07/2010 after coming back to the PP and also recorded that it was an accident and in both the above statements it was clearly recorded that nobody was responsible for the accident. PW15 Mr. J. D. Pal, Ambulance Officer CATS also stated that he received the information of railway accident. Learned Counsel for accused further submitted that the prosecutrix got injuries due to accident and nobody was responsible for the same but later on it was given a false colour and the accused was deliberately shown to be the reason of injuries caused to the prosecutrix which cannot be accepted and the prosecution and the prosecutrix cannot be allowed to have two version of the reason of the injuries caused to the prosecutrix. Learned Counsel for accused further submitted that the complaining typed statement Ex. PW1/A sent by the prosecutrix is fabricated, concocted and false statement created after the due deliberations and consultations.
Learned Counsel for accused further submitted that the complaining statement Ex. PW1/A is the statement upon which the FIR was registered. The same is a typed statement and the prosecutrix only 28 of 152 29 FIR No. 171/10 PS - Shahbad Dairy signed the same. Admittedly when this typed statement was received by the Police on 07/08/2010, the prosecutrix was in Safdarjung Hospital. The fact that the complaining statement is a typed statement and after typing the same the same got signed by the prosecutrix, clearly raise grave suspicion upon its authenticity. The prosecutrix PW1 in her cross examination recorded on 18/08/2011 deposed that, "I do not remember the exact date when I sent such complaint but it was probably 07/08/2010. I do not remember as to who got complaint Ex. PW1/A typed and I do not remember the date when I signed the same. I signed the same in the Hospital when it was brought to me by my father". This piece of evidence clearly exposed the prosecutrix and her father and also proved the fact that the statement was got prepared and typed by the father and then the same was got signed from the prosecutrix. It also proves that the document Ex. PW1/A is a fabricated statement prepared by the father of the prosecutrix in order to save himself from prosecution as he stated in his statement before PW7 that he was responsible for the accident. PW4 in his chief has stated that, "IO of the case came to Safdarjung Hospital on 20/08/2010 and recorded the statement of prosecutrix (name withheld). Prosecutrix (name withheld) had given her 29 of 152 30 FIR No. 171/10 PS - Shahbad Dairy written complaint. At that time I was not present in the Hospital. My wife Laxmi was present there." PW4 clearly deposed falsely in this regard and never disclosed that he got the complaining statement typed as deposed by the prosecutrix. This further proves that the complaining type statement Ex. PW1/A was got fabricated and manufactured by PW4 and the same was thrust upon the prosecutrix to sign, therefore the same is a false and fabricated document created after due deliberations and consultations under legal advise in order to blackmail the accused to marry the injured prosecutrix as her marriage prospects were bleak and also to save himself from prosecution as PW4 himself admitted before PW7 that the incident was caused because of him. Therefore no credence can be given to this typed belated statement more particularly when the initial statement given by the prosecutrix and PW4 were not naming the accused in any manner whatsoever. Learned Counsel for accused further submitted that prosecutrix made a categorical statement on 17/07/2010 wherein she did not level any allegation of rape but after good 21 days of the incident her father prepared a typed statement from outside and got signed from the prosecutrix and the same was given to the Police. There is no reasonable explanation of her of such delay of 21 30 of 152 31 FIR No. 171/10 PS - Shahbad Dairy days. Had there been no statement of the prosecutrix on 17/07/2010 and the statement dated 07/08/2010 would be first due to reasonable excuses the matter was reported belatedly but in the present scenario when the earlier version was lacking any accusation of rape then the prosecution and the prosecutrix cannot be allowed to have the benefit of delayed statement and the delay of 21 days in making the accusation of rape is fatal for the prosecution. The delayed accusation contains coloured version and cannot be taken as an evidence against the accused on its face value. Learned Counsel for accused further submitted that PW1 - prosecutrix improved in her Court deposition on material points and she was duly confronted with her previous statement where the improved version was absent. She has improved on the points as follows : "I had stated to the Police in my complaint Ex. PW1/A that accused had pressurized and forced me to make physical relations with him. (confronted with statement Ex. PW1/A where it is recorded that physical relation was made on false promise) I do not remember if I had mentioned in my complaint Ex. PW1/A about the fact that accused had called me to his shop where he was having one cabin behind the shop and I went there and I was unaware about his intentions and for some 31 of 152 32 FIR No. 171/10 PS - Shahbad Dairy time, accused had sweet talks with me and then offered me water and after having water, I lost my consciousness and slept and then accused had raped me and this happened four years back from today. (confronted with statement Ex. PW1/A where it is not recorded) Accused started threatening me regarding the objectionable photos of mine since June, 2010. I had mentioned in my complaint Ex. PW1/A about the fact that some days prior to the lodging of my report, accused started threatening me with my objectionable photographs. Vol. I had only told to the Police that accused started threatening me. I had mentioned in my complaint that after I became major, accused started playing with me and used to ignore me on the issue of marriage and accused used to call me and used to blackmail me and had physical relations with me many times. (confronted with statement Ex. PW1/A where it is not recorded in these words. However, it is recorded that now I became major and I told accused that I wanted him to meet my parents and on this, accused became angry and in between, on the promise of marriage, he did wrong act with me). I do not remember if I had mentioned in my complaint Ex. PW1/A that I was fed up with the behaviour of accused and them on 17/07/2010, I rang up PCR and thought that Police would understand my 32 of 152 33 FIR No. 171/10 PS - Shahbad Dairy problem and would save me from the cruelty of accused and then Police had reached in front of the shop of accused and villagers had also collected and I shouted for the help from Police and also told them about the conduct of accused and in between, my parents had also come there but Police had done nothing on my such complaint and in order to save our respect, I was sent to my house with my mother by my father and I could not bear this and became upset and thought that Police had not paid any heed to any of my relations and had done nothing (confronted with statement Ex. PW1/A where it is not so recorded). I had mentioned in my complaint Ex. PW1/A that on the evening of 17/07/2010, I went to railway line and lied there in front of train and railway Police had also come to Bhagwan Mahaveer Hospital and they had obtained my signatures on blank papers and my parents were also there in the Hospital and signatures of my father was also obtained by railway Police on blank papers. (confronted with statement Ex. PW1/A where it is not so recorded in these words, however, it is written that I left my house in order to cut myself on the railway line and other remaining facts are not recorded) I had not mentioned in my complaint Ex. PW1/A that when I was in Safdarjung Hospital, my father had visited PS many times but no 33 of 152 34 FIR No. 171/10 PS - Shahbad Dairy complaint was lodged (confronted with statement Ex. PW1/A where it is not so recorded). I do not remember if I had mentioned in my complaint that during the last four years, accused had made forcible physical relations with me and every time, he used to force me and since I was minor and was unable to understand the consequences of the conduct of accused (confronted with statement Ex. PW1/A where words "forcible physical relations" are not mentioned). Learned Counsel for accused further submitted that in her examinationinchief PW1 prosecutrix stated that accused used to trouble her when she used to cross from outside his shop and used to pressurize for physical relations but in the crossexamination her above falsehood was exposed. She stated in her crossexamination that she did not complaint to anybody regarding the trouble created by the accused and she also admitted that there were other shops as well and fellow students also used to accompany her from School and she admitted that she did not complain the acts of the accused to any person of the market or the passerby because he used to act in such a manner that no one else was able to notice but before that she deposed that he used to come closer and used to pass comments and also used to throw piece of papers from first floor and also used to 34 of 152 35 FIR No. 171/10 PS - Shahbad Dairy propose me. On the one hand she deposed that she had gone inside the shop of the accused then she said she had not gone there voluntarily then she said I went there as he had called me and then she said I had gone to meet him and then she said accused was troubling me even before the said visit. These changed versions after every breath clearly proves that she is deposing falsely. In her examinationinchief she stated that the accused offered her water and after taking water she lost consciousness and slept. But in the crossexamination she said that firstly he offered water and later he used to give some edible. She further stated that she does not remember that what exactly he used to offer her. Then she stated that after 45 minutes of taking water she used to start feeling sleepy and besides accused there used to be three more persons used to work in his shop and later on the accused had also employed one lady. She further deposed that she cannot tell as to when she regained consciousness and she rebuked accused but strangely she did not report the matter to anyone though there was no allegation of threat leveled. The above testimony is quite unnatural and improbable. Accused cannot rape in presence of so many persons and she further admitted that I had not stated to my parents or to any other about my rape was being done by 35 of 152 36 FIR No. 171/10 PS - Shahbad Dairy accused and she only stated about rape before the Police for the first time at the time of lodging the Police report whereas PW4 states that after two days of the incident the prosecutrix told this fact to her mother and she told him whereas PW10 - Laxmi Devi the mother of the prosecutrix stated in her examinationinchief that I do not know why accused Dev used to harass my daughter and prosecutrix (name withheld) told me that Dev used to tease her when she used to go to and return from the School and Dev asked her for friendship and relations but prosecutrix (name withheld) refused saying that after 23 years she would be a major and then they can get married. She further deposed as that prosecutrix (name withheld) told her that he would marry her when she become major but now when she had become major and the accused refused to marry her. This piece of evidence clearly demolishes the case of the prosecution and also proved that PW1 and PW4 were deposing falsely. She has also denied the suggestion of the prosecution that accused had physical relationship with her daughter or in order to save her honor she attempted to kill herself. She also admitted in the crossexamination that in the Safdarjung Hospital she was attending her and the Police had come there. Therefore, it is clear that in the Hospital the prosecutrix 36 of 152 37 FIR No. 171/10 PS - Shahbad Dairy never talked about rape to anybody including Police. Therefore, the prosecutrix and her father deposed falsely in this regard. Learned Counsel further submitted that the Badli Railway Line is at distance of 1 km from the house of prosecutrix and if she had to commit suicide then instead of 1 km away railway line she would not have gone to such a far place. She deposed that she took auto rickshaw and reached the railway line and when she noticed the noise of the train she jumped before the moving train from a distance of 45 feet but in the examinationinchief she stated that she lied thee in front of the train. The above testimony clearly proves that she is deposing falsely and changing her stand. Learned Counsel further submitted that PW1 Prosecutrix in her cross examination further deposed that I do not remember when for the first time after railway accident I had complained against the accused and she further stated that my parents were with me at the Safdarjung Hospital and I had told the Doctor at Safdarjung Hospital about the rape incident on the same day when I was shifted there. This fact is also a false story concocted by her. Her mother states that she never disclosed about the incident of rape. Her father states after two days in Hospital she told to her mother and then her mother told to me. No Doctors of Safdarjung 37 of 152 38 FIR No. 171/10 PS - Shahbad Dairy Hospital have stated that she stated the incident of rape on 18/10/2010 when she was shifted there. As per the Safdarjung Hospital record she disclosed to the Doctor on 11/09/2010 about the alleged rape i.e. about two months after the accident. Therefore, on this aspect also the prosecutrix and her father have been proved to be false witnesses. Ld. Counsel further submitted that in her crossexamination as stated above PW1 Prosecutrix first stated that she sent the complaint on (in) her own handwriting but when confronted with the typed complaint she said that she does not know that who got it typed and does not remember the date when she signed the same but then admitted that it was brought by her father. On this account also she lost her trustworthiness. The prosecutrix gave the history to PW5 Dr. Poonam, Safdarjung Hospital that she was having last intercourse in January, March, 2010 and history of sexual intercourse is last 3 years but in her Court deposition she has stated that she was having physical relationship for the last 4 years and in her crossexamination she stated that she lastly gone to the shop of the accused in June, 2010 and before that in March, 2010. This fact is again contradictory and further proves that the prosecutrix is deposing falsely. Learned Counsel for accused further submitted that PW4 Daya Kishan 38 of 152 39 FIR No. 171/10 PS - Shahbad Dairy deposed falsely to the fact that his statement was not recorded by PW7 - ASI Suresh Chand whereas PW7 proved the same. He further deposed falsely that the prosecutrix after her shifting to Safdarjung Hospital disclosed after two days to her mother PW10 - Laxmi about the physical relationship made by accused and then her wife disclosed these facts to him but PW10 did not state to and denied of having rape committed by the accused upon prosecutrix at any point of time and prosecutrix stated that she disclosed for the first time to the Doctors of Safdarjung Hospital on the first day of her admission and she also disclosed and contradicted herself when she stated that for the first time she disclosed the offence of rape when she made the complaining statement to the Police. Therefore, PW4 deposed falsely in this regard alongwith the prosecutrix who contradicted each other. He (PW4 Daya Kishan) further deposed falsely when he deposed that prosecutrix had given her written complaint in the presence of his wife when he was not present there in the Hospital but the prosecutrix contradicted him when she deposed that PW4 brought the typed statement and she signed the same and in the FIR it is stated that the complaining statement was received through Daak. Therefore, on this point also this witness proved to be a false witness. This witness 39 of 152 40 FIR No. 171/10 PS - Shahbad Dairy had also improved his statement when he stated that he has not disclosed to the Police that it was an accident for this nobody can be blamed. He further deposed falsely when he stated that Police recorded the statement of prosecutrix on 20/08/2010 and the same was signed by her mother. He further stated that Police did not record the statement of her daughter prior to 20/08/2010, which fact is a false fact as contradicted by PW7. Therefore this witness also cannot be believed because of above stated false and contradictory and improved deposition. PW4 Daya Kishan in his complaint Ex. PW4/A stated that her daughter disclosed to the Police of PCR all the facts but no such fact was recorded by PCR or local Police even PW4 in his Court deposition never stated such facts rather stated that he came to know about the rape when prosecutrix told her mother two days after admission in Safdarjung Hospital whereas prosecutrix in her examinationinchief stated that she told the Police on 17/07/2010 about the conduct of the accused but in the crossexamination she stated that she never disclosed the fact of rape to anyone including brothers, sisters, villagers and for the first time disclosed the fact of rape at the time of lodging the Police report. Therefore, from this piece of evidence also the falsehood of the witnesses and prosecution case has been 40 of 152 41 FIR No. 171/10 PS - Shahbad Dairy exposed. Ld. Counsel for accused further submitted that even PW6 - HC Darvesh stated in his examinationinchief that on 17/07/2010 when he reached the village Shahbad, he was told by the father of prosecutrix that it was a minor altercation and he had sent to her house with her mother therefore no action was initiated. This testimony also went unchallenged by the prosecution and now is binding on the prosecution and this testimony is again contradicting PW4. PW10 Smt. Laxmi Devi, mother of the prosecutrix has completely denied the fact that she was ever told by anybody that the accused raped prosecutrix at any point of time. And she further denied the suggestion of the prosecution that accused made physical relationship with her daughter by making her to eat or drink any intoxicating substance and further denied that the accused had raped her daughter on any pretext. In her crossexamination she admitted that when prosecutrix remained admitted in Safdarjung Hospital she was attending her. She further admitted that after 12 days of the accident she spoke to prosecutrix but she never stated in her Court deposition that prosecutrix ever told her that she was raped by the accused. Learned Counsel for accused further submitted that the investigation has been unfair in this case and the accused is wrongly chargesheeted by the 41 of 152 42 FIR No. 171/10 PS - Shahbad Dairy Police. The Police on the one hand admitting the fact that prosecutrix and her father initially did not name the accused in any manner whatsoever but still relied upon the subsequent belated typed statement. No investigation was done as to who got typed the statement Ex. PW1/A and from where it got typed, more particularly when it was in the knowledge of the Police that at the time of filing of the complaining statement the prosecutrix was admitted in Safdarjung Hospital. The Police failed to investigate or connect the accused with the commission of crime and did not investigate the matter from the employees of the accused or from villagers or from other family members of the accused as the same were exonerating the accused. The Police only on the advice of prosecution branch registered this case and wrongly arrested the accused knowing fully well that he was innocent and the subsequent belated statements of the prosecutrix are contradictory from earlier version. No nude photograph of any kind were recovered from the possession of the accused and no evidence in favour of the accused which contradicting the prosecutrix and her family were collected deliberately. Learned Counsel for accused further submitted that prosecution has miserably failed to prove its case beyond the shadow of 42 of 152 43 FIR No. 171/10 PS - Shahbad Dairy reasonable doubt and prayed for the acquittal of the accused on the charge levelled against him. Learned Counsel for the accused referred to the cases and are reported as 'Sharad Birdhi Chand Sarda Vs. State of Maharashtra' AIR 1991 SC 917, 'Jaharlal Das. Vs. State of Orissa' 1991 AIR 1388, 'Balvinder Singh Vs. State of Punjab' AIR 1996 SC 607, 'Tanviben Pankaj Divetia Vs. State of Gujrat' 1997 Crl.L.J. 2535, 'Shakila Abdul Gafar Khan Vs. Vasant Raghunath Dhoble' (2003) 7 SCC 749, 'Zahira Habibullah Sheikh Vs. State of Gujrat' (2006) 3 SCC 374, 'Raju Vs. State of Madhya Pardesh' (2008) 15 SCC 133, 'Abbas Ahmed Choudhary Vs. State of Assam' (2010) 12 SCC 115, 'Narender Kumar Vs. State of NCT of Delhi' (2012) SC 2281, 'Tukaram & Anr. Vs. The State of Maharashtra' (AIR 1979 SC 185), 'Uday Vs. State of Karnataka' AIR 2003 SC 1639, 'Rai Sandeep @ Deepu Vs. State of NCT of Delhi' 2012 (131) DRJ 3 (SC), 'Radhu Vs. State of Madhya Pradesh' (2007) Cr.L.J. 4704 and 'Mumtaz Vs. State (NCT of Delhi)' ILR (2013) IV DELHI 2706.
9. While the Learned Addl. PP for the State, on the other hand, submitted that the testimonies of the prosecution witnesses are cogent 43 of 152 44 FIR No. 171/10 PS - Shahbad Dairy and consistent and the contradictions and discrepancies as pointed out are minor and not the material one's and do not affect the credibility of the witnesses and the prosecution has proved its case beyond reasonable doubt.
10. I have heard Ms. Nimmi Sisodia, Learned Addl. PP for the State and Sh. Sachin Dev Sharma, Learned Amicus Curiae for the accused and have also carefully perused the entire record.
11. The charge for the offence punishable u/s 376 IPC against the accused Vipin Nahar @ Dev is that during the period of four years previous to 20/08/2010 till March, 2010 at time and place unknown, he had induced the prosecutrix (name withheld) D/o Daya Kishan R/o House No. 382, Bawana Road, Delhi within the jurisdiction of PS - Shahbad Dairy, to have sexual intercourse with him on the false pretext that he would marry her (prosecutrix) and thereby he obtained her consent for such sexual intercourse and had sexual intercourse with her by making false promise.
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12. It is to be mentioned that as a matter of prudence, in order to avoid any little alteration in the spirit and essence of the depositions of the material witnesses, during the process of appreciation of evidence at some places their part of depositions have been reproduced, in the interest of justice.
AGE OF THE PROSECUTRIX
13. PW1 Prosecutrix during her crossexamination recorded on 20/05/2011 has deposed that "at the time of incident, I was studying in school of Shahbad Daulat pur. My school was at five minutes, walking distance from my house. At the time of incident, my school was upto 10th standard. School is in the same village, in which I am living."
PW4 Daya Kishan @ Lal, father of the prosecutrix in his examinationinchief recorded on 12/10/2011 has deposed that : " On 17/07/2010, prosecutrix (name withheld) was studying th in 9 class in Govt. School in our village."
"I had also handed over the photocopy of date of birth certificate of MCD with respect to the age of my daughter. Her date of birth is 17/08/1991. Photocopy of birth certificate was given by me to 45 of 152 46 FIR No. 171/10 PS - Shahbad Dairy police. The same is already on judicial record. The same is mark 'A' which is now Ex. Mark PW4/D."
PW14 - Sh. K. D. Shankaran, Record Clerk, Death and Birth Registration Department, Sector - 5, Rohini Zone, MCD, who produced the birth record of prosecutrix (name withheld) and deposed that as per the record of MCD prosecutrix was born on 16/08/1991 and proved the copy of MCD Certificate Ex. PW14/A (Earlier marked as Mark PW4/D).
It is also to be noticed from the material on the record that on 21/05/2012, the defence counsel had stated that he is admitting that the victim was studying in that school (Govt. CoEd. Sec. School, Shahbad Daulatpur, Delhi110042) at that time and he also admitted the certificate issued by that school. Certificate in view of admission was exhibited as Ex. P Adv. 1 as is reflected from the ordersheet dated 21/05/2012.
On perusal of the certificate Ex. P Adv. 1, it is found to be issued on 20/10/2010 by the Vice Principal, Govt. CoEd. Sec. School, Shahbad Daulatpur, Delhi110042 wherein it is certified that prosecutrix 46 of 152 47 FIR No. 171/10 PS - Shahbad Dairy (name withheld) d/o Sh. Daya Kishan is the old student of Xth A in the school. Till 17/07/2010, she was a regular student. As per the school record, her admission number is 764, school student ID No. 20040056133 and her date of birth is 16/06/1993.
In case 'Jarnail Singh Vs. State of Haryana', 2013 VII AD (S.C.) 313 in para 20, the Hon'ble Supreme Court has held that, it would be just and appropriate to apply Rule 12 of Juvenile Justice (Care and Protection of Children) Rules, 2007 to determine the age of the prosecutrix.
In the instant case, since with regard to date of birth, matriculation or equivalent certificate Ex. P Adv. 1, of PW1 - prosecutrix, as provided under Rule 12(3)(a)(i) is available, therefore the same is adopted as the highest rated first available basis in terms of the scheme of options under clause (a) of Rule 12 (3) of Juvenile Justice (Care and Protection of Children) Rules, 2007.
Moreover, the certificate Ex. P Adv. 1 has also been admitted by the Learned Counsel for the accused, as discussed herein 47 of 152 48 FIR No. 171/10 PS - Shahbad Dairy above and as reflected in the ordersheet dated 21/05/2012. Whereby, the date of birth of the prosecutrix mentioned therein as 16/06/1993, is the date of birth of the prosecutrix.
In the circumstances, it stands established on the record that the date of birth of PW1 Prosecutrix is 16/06/1993 vide Ex. P Adv. 1.
As the date of the alleged incident is four years prior to 20/08/2010 and the date of the birth of the prosecutrix is 16/06/1993, on simple arithmetical calculation, the age of prosecutrix comes to 13 years 02 months and 04 days as on the date of alleged incident four years prior to 20/08/2010.
In view of above and in the circumstances, it stands established on record that PW1 prosecutrix was aged 13 years 02 months and 04 days as on the date of alleged incident four years prior to 20/08/2010.
48 of 152 49 FIR No. 171/10 PS - Shahbad Dairy It is pertinent to reproduce para 20 of Jarnail Singh's case (Supra) of the Hon'ble Supreme Court which reads as under : "On the issue of determination of age of a minor, one only needs to make a reference to Rule 12 of the Juvenile Justice (Care and Protection of Children) Rules, 2007 (hereinafter referred to as the 2007 Rules). The aforestated 2007 Rules have been framed under Section 68(1) of the Juvenile Justice (Care and Protection of Children) Rules, 2000. Rule 12 referred to hereinabove reads as under : "12. Procedure to be followed in determination of Age.? (1) In every conflict with law, the Court or the Board or as the case may be the Committee referred to in rule 19 of these rules shall determine the age of such juvenile or child or a juvenile in conflict with law within a period of thirty days from the date of making of the application for that purpose.
(2) The Court or the Board or as the case may be the Committee shall decide the juvenility or otherwise of the juvenile or the child or as the case may be the juvenile in conflict with law, prima facie on the basis of physical appearance or documents, if available, and send him to the observation home or in jail.
(3) In every case concerning a child or juvenile in conflict with law, the age determination inquiry shall be conducted by the Court or the Board or, as the case may be, the Committee by seeking evidence by obtaining
(a) (i) the matriculation or equivalent certificates, if available; and in the absence whereof;
(ii) the date of birth certificate from the school (other than a play school) first attended; and in the absence whereof;
(iii) the birth certificate given by a corporation or a municipal authority or a panchayat;
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(b) and only in the absence of either (i), (ii) or (iii) of clause (a) above, the medical opinion will be sought from a duly constituted Medical Board,which will declare the age of the juvenile or child. In case exact assessment of the age cannot be done, the Court or the Board or, as the case may be, the Committee, for the reasons to be recorded by them, may, if considered necessary, give benefit to the child or juvenile by considering his/her age on lower side within the margin of one year.
and, while passing orders in such case shall, after taking into consideration such evidence as may be available, or the medical opinion, as the case may be, record a finding in respect of his age and either of the evidence specified in any of the clauses (a) (i), (ii), (iii) or in the absence whereof, clause (b) shall be the conclusive proof of the age as regards such child or the juvenile in conflict with law. (4) If the age of a juvenile or child or the juvenile in conflict with law is found to be below 18 years on the date of offence, on the basis of any of the conclusive proof specified in subrule (3), the Court or the Board or as the case may be the Committee shall in writing pass an order stating the age and declaring the status of juvenility or otherwise, for the purpose of the Act and these rules a copy of the order shall be given to such juvenile or the person concerned.
(5) Save and except where, further inquiry or otherwise is required, inter alia, in terms of section 7A, section 64 of the Act and these rules, no further inquiry shall be conducted by the Court or the Board after examining and obtaining the certificate or any other documentary proof referred to in sub rule (3) of this rule.
50 of 152 51 FIR No. 171/10 PS - Shahbad Dairy (6) The provisions contained in this rule shall also apply to those disposed off cases, where the status of juvenility has not been determined in accordance with the provisions contained in subrule (3) and the Act, requiring dispensation of the sentence under the Act for passing appropriate order in the interest of the juvenile in conflict with law."
Even though Rule 12 is strictly applicable only to determine the age of a child in conflict with law, we are of the view that the aforesaid statutory provision should be the basis for determining age, even for a child who is a victim of crime. For, in our view, there is hardly any difference in so far as the issue of minority is concerned, between a child in conflict with law, and a child who is a victim of crime. Therefore, in out considered opinion, it would be just and appropriate to apply Rule 12 of the 2007 Rules, to determine the age of the prosecutrix VWPW6. The manner of determining age conclusively, has been expressed in subrule (3) of Rule 12 extracted above. Under the aforesaid provision, the age of a child is ascertained, by adopting the first available basis, out of a number of options postulated in Rule 12(3). If, in the scheme of options under Rule 12(3), an option is expressed in a preceding clause, it has overriding effect over an option expressed in a subsequent clause. The highest rated option available, would conclusively determine the age of a minor. In the scheme of Rule 12(3), matriculation (or equivalent) certificate of the concerned child, is the highest rated option. In case, the said certificate is available, no other evidence can be relied upon. Only in the absence of the said certificate, Rule 12(3), envisages consideration of the date of birth entered, in the school first attended by the child. In case such an entry of date is available, the date of birth depicted therein is liable to be treated as final 51 of 152 52 FIR No. 171/10 PS - Shahbad Dairy and conclusive, and no other material is to be relied upon. Only in the absence of such entry, Rule 12(3) postulates reliance on a birth certificate issued by a corporation or a municipal authority or a panchayat. Yet again, if such a certificate is available, then no other material whatsoever is to be taken into consideration, for determining the age of the child concerned, as the said certificate would conclusively determine the age of the child. It is only in the absence of any of the aforesaid, that Rule 12(3) postulates the determination of age of the concerned child, on the basis of medical opinion." MEDICAL EVIDENCE OF THE PROSECUTRIX
14. PW5 - Dr. Poonam, working in Gynae Department, Safdarjung Hospital, New Delhi, who deposed that on 11/09/2010, he was working in Safdarjung Hospital and on that day she had examined the prosecutrix and proved the attested photocopies of the OPD bearing no. GRR27708 Ex. PW5/A signed by her at point 'A' and deposed that this document was filled by her and bears her signature at point 'A'.
PW8 - Dr. Ajay Dalal, Bhagwan Mahavir Hospital, Pitam Pura, Delhi, who medically examined the prosecutrix on 17/07/2010 vide MLC No. 1057/10 C.R. No. 26554 and proved the MLC Ex. PW8/A, signed by him at point 'A' and also proved his endorsements at point 'B' & 'C' on the MLC Ex. PW8/A to the effect that the patient/prosecutrix is 52 of 152 53 FIR No. 171/10 PS - Shahbad Dairy fit for statement.
Despite grant of opportunity, PW5 Dr. Poonam and PW8 Dr. Ajay Dalal, were not crossexamined on behalf of the accused.
In the circumstances, the medical examination vide MLC Ex. PW5/A and MLC Ex. PW8/A of PW1 prosecutrix stands proved on the record.
VIRILITY OF THE ACCUSED
15. PW9 - Dr. Virender Kumar, Maharishi Balmiki Hospital, Pooth Khurd, Delhi who medically examined patient/accused Vipin Rao S/o Saba Ram on 25/08/2010 vide MLC No. 3348/10 C.R. No. 15296/10 and opined that there is nothing to suggest that the patient/accused cannot perform sexual intercourse and proved the MLC Ex. PW9/A, his opinion at point 'A' encircled red.
Despite grant of opportunity, PW9 Dr. Virender Kumar, was not crossexamined on behalf of the accused.
In the circumstances, it stands proved on the record that 53 of 152 54 FIR No. 171/10 PS - Shahbad Dairy accused Vipin was capable to perform sexual intercourse.
16. Now let the testimonies of PW1 Prosecutrix, PW4 Sh. Daya Kishan @ Lal, her father and PW10 Laxmi Devi, her mother be perused and analysed.
PW1 is the prosecutrix, who in her examinationinchief recorded on 29/04/2011 has deposed which is reproduced and reads as under : "I know accused Vipin Nahar @ Dev present in the Court (correctly identified). Accused told me that he used to reside at Vijay Nagar Colony, Bawana. Accused used to run his mobile shop near my house since 2004 to 2005. the shop of accused falls on the way to my School and I used to pass from there. I was studying in sixth or seventh standard in a Government School, Shahbad Dairy. Since four years prior to the incident, accused used to trouble me when I used to cross from outside his shop. He used to stop me and used to claim that he was in love with me and he wanted to marry me. He pressurized me to have physical relations on the pretext that he will marry me and he forced me and had physical relations with me. Accused had called me to his shop where is is having one cabin behind the shop. I went there. I was unaware about the intentions of accused. For some time, accused had sweet talks with me and then he offered me water. I had that water and thereafter, I lost my consciousness and slept. Then he had galat kaam 54 of 152 55 FIR No. 171/10 PS - Shahbad Dairy (he made relations as husband and wife) with me. This happened four years from today. I got upset with this and I also got mentally disturbed and could not concentrate on my studies. Accused also threatened me that if I will say anything about the conduct of accused to anyone then, he will defame me. Some days prior to the lodging of my report, accused also threatened me by saying that he had taken my nude photographs when I was unconscious and he would defame me. He also threatened me that would not let me live in society. He insisted me that I should obey him and do as peer his wishes. He used to say that "shaadi vaadi me kya rakha hai, zindagi ke maze lo". Accused used to say that when I will become major, he will marry me but now when I became major, he started playing with me and used to ignore me on the issue of marriage. Accused used to give me phone call and used to call me. He used to blackmail me and had physical relations with me many times. I was fed up with the behaviour of accused and then on 17/07/2010, I had rang up number 100. I thought that Police would understand my problem and would save me from the cruelty of accused. Police had come in front of shop of accused and villagers had also collected. I shouted for the help from Police and also told them about the conduct of accused. In between, my parents had also come there. Police had done nothing on my such complaint. In order to save our respect, my father had then sent me to my house with my mother. I could not bear this and became upset and thought that Police had not paid any heed to any of my allegations and had done nothing.
On 17/07/2010 in the evening, I went to the Railway Line and lied there in front of train and in that incident, both my legs got severe injuries. On of my leg was amputated and another leg was severely damaged and nowadays, I am walking with the help of clutches. I was admitted in Bhagwan Mahaveer Hospital. I remained there for 55 of 152 56 FIR No. 171/10 PS - Shahbad Dairy overnight. Railway Police had also come to Bhagwan Mahaveer Hospital and they had obtained my signatures on some blank papers. My parents were also there in the Hospital. Railway Police had also obtained signatures of my father and myself on some blank papers. Accused had destroyed my life and I do not want that he remain free to spoil the life of any other girl. I was shifted to Safdarjung Hospital where I was medically treated till December, 2010. When I was in the Hospital, my father had visited PS many times but no complaint was lodged. During last four years, accused had made forcible physical relations with me many times. Every time, he used to force me but since I was minor and was unable to understand the consequences of the conduct of accused. After some time, when I partially recovered from my injuries, I made a report to the Police against the conduct of accused. Complaint is now exhibited as Ex. PW1/A bears my signatures at point 'A'. No action was taken by Police on my that complaint at that time. Later on, I had again made complaints to SHO which is now exhibited as Ex. PW1/B and Ex. PW1/C bears my signatures at points 'A'. Name of my parents also got defamed in the society due to the conduct of accused. Accused kept me in his clutches and had taken disadvantage of my being under age."
From the aforesaid narration of PW1 - prosecutrix, it is clear that she knew accused Vipin Nahar @ Dev. Accused told her that he used to reside at Vijay Nagar Colony, Bawana. Accused used to run his mobile shop near her house since 2004 to 2005. The shop of accused falls on the way to her School and she used to pass from there. She was 56 of 152 57 FIR No. 171/10 PS - Shahbad Dairy studying in sixth or seventh standard in a Government School, Shahbad Dairy. Since four years prior to the incident, accused used to trouble her when she used to cross from outside his shop. He used to stop her and used to claim that he was in love with her and he wanted to marry her. He pressurized her to have physical relations on the pretext that he will marry her and he forced her and had physical relations with her. Accused had called her to his shop where he is having one cabin behind the shop. She went there. She was unaware about the intentions of accused. For some time, accused had sweet talks with her and then he offered her water. She had that water and thereafter, she lost her consciousness and slept. Then he had galat kaam (he made relations as husband and wife) with her. This happened four years from today. She got upset with this and she also got mentally disturbed and could not concentrate on her studies. Accused also threatened her that if she will say anything about the conduct of accused to anyone then, he will defame her. Some days prior to the lodging of her report, accused also threatened her by saying that he had taken her nude photographs when she was unconscious and he would defame her. He also threatened her that would not let her live in society. He insisted her that she should 57 of 152 58 FIR No. 171/10 PS - Shahbad Dairy obey him and do as per his wishes. He used to say that "shaadivaadi me kya rakha hai, zindagi ke maze lo". Accused used to say that when she will become major, he will marry her but now when she became major, he started playing with her and used to ignore her on the issue of marriage. Accused used to give her phone call and used to call her. He used to blackmail her and had physical relations with her many times. She was fed up with the behaviour of accused and then on 17/07/2010, she had rang up number 100. She thought that Police would understand her problem and would save her from the cruelty of accused. Police had come in front of shop of accused and villagers had also collected. She shouted for the help from Police and also told them about the conduct of accused. In between, her parents had also come there. Police had done nothing on her such complaint. In order to save their respect, her father had then sent her to her house with her mother. She could not bear this and became upset and thought that Police had not paid any heed to any of her allegations and had done nothing. On 17/07/2010 in the evening, she went to the Railway Line and lied there in front of train and in that incident, both her legs got severe injuries. One of her leg was amputated and another leg was severely damaged and nowadays, she is walking with 58 of 152 59 FIR No. 171/10 PS - Shahbad Dairy the help of clutches. She was admitted in Bhagwan Mahaveer Hospital. She remained there for overnight. Railway Police had also come to Bhagwan Mahaveer Hospital and they had obtained her signatures on some blank papers. Her parents were also there in the Hospital. Railway Police had also obtained signatures of her father and herself on some blank papers. Accused had destroyed her life and she does not want that he remain free to spoil the life of any other girl. She was shifted to Safdarjung Hospital where she was medically treated till December, 2010. When she was in the Hospital, her father had visited PS many times but no complaint was lodged. During last four years, accused had made forcible physical relations with her many times. Every time, he used to force her but since she was minor and was unable to understand the consequences of the conduct of accused. After some time, when she partially recovered from her injuries, she made a report to the Police against the conduct of accused. Complaint is now exhibited as Ex. PW1/A bears her signatures at point 'A'. No action was taken by Police on her that complaint at that time. Later on, she had again made complaints to SHO which is now exhibited as Ex. PW1/B and Ex. PW1/C bears her signatures at points 'A'. Name of her parents also got 59 of 152 60 FIR No. 171/10 PS - Shahbad Dairy defamed in the society due to the conduct of accused. Accused kept her in his clutches and had taken disadvantage of her being under age.
PW1 - Prosecutrix during her crossexamination has negated the suggestions that accused is innocent or that he has been falsely implicated at the instance of her parents or that in order to save her parents from prosecution for being responsible of her railway incident or that the story of forcible sexual intercourse has been concocted or that four years period was also deliberately and falsely introduced in order to make out a false case against the accused or that after the railway incident, she was conscious and in full sense at the time of reaching Bhagwan Mahaveer Hospital or that she had given the history to the Doctor as train accident or that she and her father blamed nobody for the railway incident or that her father conceded before the Police on that day that no one was responsible for the railway incident or that accused has not committed any wrong act with her at any point of time as deposed by her or that accused never harassed, pressurized or forced her for any purpose whatsoever or that complaint Ex. PW1/A is a fabricated documents, prepared after due deliberation and consultations 60 of 152 61 FIR No. 171/10 PS - Shahbad Dairy with her parents and relatives in order to falsely implicate the accused or that she is deposing falsely.
Inspite of incisive crossexamination of PW1 Prosecutrix nothing material has been brought out on the record so as to impeach her creditworthiness. In the witness box she has withstood the test of cross examination and her testimony is consistent throughout. The testimony of PW1 - Prosecutrix on careful perusal and analysis is found to be clear, natural, cogent, convincing, trustworthy and inspiring confidence. The version of this witness on the core spectrum of the crime has remained intact. There is nothing in her statement to suggest that she had any animus against the accused to falsely implicate him in the case.
The testimony of PW1 - Prosecutrix is also found to be corroborated by the medical evidence as discussed hereinbefore.
The testimony of PW1 - Prosecutrix is also found to be in consonance with her statement Ex. PW1/A made to the Police.
61 of 152 62 FIR No. 171/10 PS - Shahbad Dairy The testimony of PW1 Prosecutrix is also found to be corroborated by the testimonies of PW4 - Sh. Daya Kishan @ Lal, father of the prosecutrix and PW10 - Laxmi Devi, mother of the prosecutrix to whom PW1 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.
PW4 - Daya Kishan @ Lal in his examinationinchief has deposed that : "I have three children. Prosecutrix (name withheld) is the youngest one. Now she is of 1718 years of age. On 17/07/2010 I was present at my Tea Stall which is installed at bus stand of Sector 1617, Rohini, Delhi. At about 3:30 p.m. one driver had informed me that my daughter/prosecutrix (name withheld) was having quarrel with accused in the village in front of the STD Shop of accused. Accused was running his STD Shop in front of my street in which my house was situated. I do not know accused person but I had seen him running his STD Shop which is the only STD shop in our village, present in the Court correctly identify (identified). I immediately reached at the spot where I had seen that many public persons had already gathered and Police had also reached as they were called by my daughter by calling PCR. Ved Parkash in whose shop accused was tenant and was running his STD Shop was also present there. Altercation between prosecutrix (name 62 of 152 63 FIR No. 171/10 PS - Shahbad Dairy withheld) and accused were going on. I felt ashamed of the quarrel and Ved Parkash was also telling me that it is the question of our dignity and quarrel should be stopped. I consoled my daughter and sent her to my house and went to my shop. At about 56 p.m., I received a phone call from some railway Police official on my mobile and I was told that my daughter had met with an accident with the train. I immediately rushed at the Kishan Ganj Railway Station where such accident took place. I enquired from the railway Police officials and I was told that prosecutrix (name withheld) was sent to Bhagwan Mahavir Hospital. Myself, my elder brother and my wife with 23 neighbours reached at Bhagwan Mahavir Hospital.
During his further examinationinchief recorded on 12/10/2011, he deposed that : On 17/07/2010 prosecutrix (name withheld) was studying in th 9 class in Govt. School in our village. In the Hospital I had seen prosecutrix (name withheld) was admitted in the Hospital and she was on bed and her one leg was amputated and other was having severe injuries. The condition was very bad. Two Police officials probably from Railway were there. They made some formal enquiries from me about prosecutrix (name withheld) and then they asked me to sign two blank papers on which signatures of prosecutrix (name withheld) were already there. I had sign on those two blank papers and then they left from there. We remained in Hospital whole night and next morning prosecutrix (name withheld) was sent to Safdarjung Hospital. In Safdarjung Hospital prosecutrix (name withheld) remained admitted for many months where her operation and dressing were done. We came in the 63 of 152 64 FIR No. 171/10 PS - Shahbad Dairy end of November, 2010. Prosecutrix (name withheld) was discharged from the Hospital. Even after that she was under treatment from that Hospital. When prosecutrix (name withheld) was shifted to Safdarjung Hospital after two days she had disclosed to my wife Laxmi Devi that accused Vipin was making physical relations (Najayaj) for last 34 years and was alluring her and induced her by saying that accused would marry prosecutrix (name withheld) when she will become major. My wife had disclosed all these facts to me and when I enquired from prosecutrix (name withheld) she had again disclosed all these facts to me. I went to PS - Prehlad Pur to lodge the report against accused Vipin but Police did not lodge my report. Many times I went to PS to lodge the report but they did not lodge the report. I appeared before DCP Outer District who sent me to ACP of our area. On the direction of DCP I was sent to SHO of the area and then only Police took action on my complaint. For one month I roamed one door to another to lodge the report but nothing happened and my report was lodged only when I appeared before the DCP. I have brought the received copy of my complaint which I had made to DCP, Rohini. Same is retained on record now Ex. PW4/A. IO of the case came to Safdarjung Hospital on 20/08/2010 and recorded the statement of prosecutrix (name withheld). prosecutrix (name withheld) had given her written complaint. At that time I was not present in the Hospital. My wife Laxmi Devi was there. On 25/08/2010 accused present in the Court today was arrested on my identification. I had signed documents of his arrest. The arrest memo is Ex. PW4/B and personal search memo is Ex. PW4/C bear my signatures at point 'A'. My daughter attempted to commit suicide by throwing herself in front of moving train as she was ashamed with what had happened with her and because of conduct of accused. I had also handed over the photocopy of date of birth certificate of MCD with respect to 64 of 152 65 FIR No. 171/10 PS - Shahbad Dairy the age of my daughter. Her date of birth is 17/08/1991. Photocopy of birth certificate was given by me to Police. The same is already on judicial record. The same is mark 'A' which is now Ex. Mark PW4/D. In the Safdarjung Hospital during admission period of my daughter prosecutrix (name withheld) her photographs were also got done. Photographs of STD Shop of accused was also got done by the Police. Photographs are already on judicial file. The same are mark Ex. PW4/E1 to Ex. PW4/E5. When my daughter was in Safdarjung Hospital I went to PS - Prehlad Pur and given two complaint on behalf of prosecutrix (name withheld) on different dates. The same are already Ex. PW1/A and Ex. PW1/B."
From the abovesaid narration of PW4 - Daya Kishan, it is clear that he is having three children and prosecutrix is the youngest one. Now she is of 1718 years of age. On 17/07/2010 he was present at his Tea Stall which is installed at bus stand of Sector 1617, Rohini, Delhi. At about 3:30 p.m. one driver had informed him that his daughter/prosecutrix (name withheld) was having quarrel with accused in the village in front of the STD Shop of accused. Accused was running his STD Shop in front of his street in which his house was situated. He does not know accused person but he had seen him running his STD Shop which is the only STD shop in their village. He correctly identified the accused present in the Court. He immediately reached at the spot 65 of 152 66 FIR No. 171/10 PS - Shahbad Dairy where he had seen that many public persons had already gathered and Police had also reached as they were called by his daughter by calling PCR. Ved Parkash in whose shop accused was tenant and was running his STD Shop was also present there. Altercation between prosecutrix (name withheld) and accused were going on. He felt ashamed of the quarrel and Ved Parkash was also telling him that it is the question of their dignity and quarrel should be stopped. He consoled his daughter and sent her to his house and went to his shop. At about 56 p.m., he received a phone call from some railway Police official on his mobile and he was told that his daughter had met with an accident with the train. He immediately rushed at the Kishan Ganj Railway Station where such accident took place. He enquired from the railway Police officials and he was told that prosecutrix (name withheld) was sent to Bhagwan Mahavir Hospital. He himself, his elder brother and his wife with 23 neighbours reached at Bhagwan Mahavir Hospital. On 17/07/2010 prosecutrix (name withheld) was studying in 9th class in Govt. School in our village. In the Hospital he had seen prosecutrix (name withheld) was admitted in the Hospital and she was on bed and her one leg was amputated and other was having severe injuries. The condition was very 66 of 152 67 FIR No. 171/10 PS - Shahbad Dairy bad. Two Police officials probably from Railway were there. They made some formal enquiries from him about prosecutrix (name withheld) and then they asked him to sign two blank papers on which signatures of prosecutrix (name withheld) were already there. He had sign on those two blank papers and then they left from there. They remained in Hospital whole night and next morning prosecutrix (name withheld) was sent to Safdarjung Hospital. In Safdarjung Hospital prosecutrix (name withheld) remained admitted for many months where her operation and dressing were done. They came in the end of November, 2010. Prosecutrix (name withheld) was discharged from the Hospital. Even after that she was under treatment from that Hospital. When prosecutrix (name withheld) was shifted to Safdarjung Hospital after two days she had disclosed to his wife Laxmi Devi that accused Vipin was making physical relations (Najayaj) for last 34 years and was alluring her and induced her by saying that accused would marry prosecutrix (name withheld) when she will become major. His wife had disclosed all these facts to him and when he enquired from prosecutrix (name withheld) she had again disclosed all these facts to him. He went to PS - Prehlad Pur to lodge the report against accused Vipin but Police did not lodge his 67 of 152 68 FIR No. 171/10 PS - Shahbad Dairy report. Many times he went to PS to lodge the report but they did not lodge the report. He appeared before DCP Outer District who sent him to ACP of their area. On the direction of DCP he was sent to SHO of the area and then only Police took action on his complaint. For one month he roamed one door to another to lodge the report but nothing happened and his report was lodged only when he appeared before the DCP. He had brought the received copy of his complaint which he had made to DCP, Rohini. Same is retained on record now Ex. PW4/A. IO of the case came to Safdarjung Hospital on 20/08/2010 and recorded the statement of prosecutrix (name withheld). Prosecutrix (name withheld) had given her written complaint. At that time he was not present in the Hospital. His wife Laxmi Devi was there. On 25/08/2010 accused present in the Court today was arrested on his identification. He had signed documents of his arrest. The arrest memo is Ex. PW4/B and personal search memo is Ex. PW4/C bears his signatures at point 'A'. His daughter attempted to commit suicide by throwing herself in front of moving train as she was ashamed with what had happened with her and because of conduct of accused. He had also handed over the photocopy of date of birth certificate of MCD with respect to the age of his 68 of 152 69 FIR No. 171/10 PS - Shahbad Dairy daughter. Her date of birth is 17/08/1991. Photocopy of birth certificate was given by her to Police. The same is already on judicial record. The same is mark 'A' which is now Ex. Mark PW4/D. In the Safdarjung Hospital during admission period of his daughter prosecutrix (name withheld) her photographs were also got done. Photographs of STD Shop of accused was also got done by the Police. Photographs are already on judicial file. The same are mark Ex. PW4/E1 to Ex. PW4/E5. When his daughter was in Safdarjung Hospital he went to PS - Prehlad Pur and given two complaint on behalf of prosecutrix (name withheld) on different dates. The same are already Ex. PW1/A and Ex. PW1/B. During his crossexamination PW4 Daya Kishan has negated the suggestions that he had stated correct facts before ASI Suresh Chand and after understanding the contents of the same he had signed the same dated 17/07/2010 and 24/07/2010 or that he is deliberately denying those statements or that later on, a false and fabricated story was concocted and the present case was got registered against the accused or that he had deposed falsely with regard to his visits to the Police Stations or with regard to the fact that his signatures 69 of 152 70 FIR No. 171/10 PS - Shahbad Dairy were taken on blank papers or that accused has nothing to do with the injuries to the prosecutrix or that complaint Ex. PW4/A is a fabricated complaint.
PW10 - Laxmi Devi in her examinationinchief has deposed that : "I have three children, two daughters and one son. My elder daughter is married. My son and my younger daughter are unmarried. My daughter/prosecutrix (name withheld) is the younger daughter. Prosecutrix (name withheld) was born in the year, 1991. At the time of lodging of report, she was 18 years of age. In the year 2010, on 17th, month I do not remember, I was present at my house. During the noon hours, one child from the locality came to inform me that my daughter prosecutrix (name withheld) had called Police at the shop of accused Dev, present in Court, correctly identified). Accused Dev was running his mobile shop in the house of Rajpal in village Shahbad. I went to the shop of Dev. When I reached there, Police was already present there. My husband Daya Kishan also came there. My husband consoled my daughter prosecutrix (name withheld) and tried to pacify and also sent her back to our house. I also came back home with my daughter. My husband had left for his shop from the shop of Dev. I engaged myself in the household and I thought that prosecutrix (name withheld) was inside the house. At about 34 p.m. when I had seen searched for prosecutrix (name withheld) inside the house and she was not found there in the house. I thought that she might have gone to the house of her Tai and would return after some time but she did not turn up. My husband had 70 of 152 71 FIR No. 171/10 PS - Shahbad Dairy received call from prosecutrix (name withheld) and she told about some accident and then, my husband went to Mahavir Hospital. In the late night, I had also gone to Mahavir Hospital. At that time, prosecutrix (name withheld) was unconscious. In the Hospital, I had come to know that prosecutrix (name withheld) had been cut on the railway track and she was having injuries in her both legs. I do not know how she had met with an accident. After one or two days, prosecutrix (name withheld) regained her consciousness and told me that accused Dev used to harass her and for that reason, she had gone to kill herself. I do not know why accused Dev used to harass my daughter. prosecutrix (name withheld) had told me that Dev used to tease her while she used to go to and return from School. Dev used to ask her for friendship and relations but prosecutrix (name withheld) refused saying that after 23 years, she will be major and then she can get married. She had also told me that accused assured prosecutrix (name withheld) that he would marry her when would be major but when prosecutrix (name withheld) told accused that she had become major, accused refused to marry her. (Objected to). Police never met me and never recorded my statement."
From the abovesaid narration of PW10 - Laxmi Devi, it is clear that she has three children, two daughters and one son. Her elder daughter is married. Her son and her younger daughter are unmarried. Her daughter/prosecutrix (name withheld) is the younger daughter. Prosecutrix (name withheld) was born in the year, 1991. At the time of lodging of report, she was 18 years of age. In the year 2010, on 17th, 71 of 152 72 FIR No. 171/10 PS - Shahbad Dairy month she does not remember, she was present at my house. During the noon hours, one child from the locality came to inform her that her daughter prosecutrix (name withheld) had called Police at the shop of accused Dev. She correctly identified the accused in the Court. Accused Dev was running his mobile shop in the house of Rajpal in village Shahbad. She went to the shop of Dev. When she reached there, Police was already present there. Her husband Daya Kishan also came there. Her husband consoled her daughter prosecutrix (name withheld) and tried to pacify and also sent her back to their house. She also came back home with her daughter. Her husband had left for his shop from the shop of Dev. She engaged herself in the household and she thought that prosecutrix (name withheld) was inside the house. At about 34 p.m. when she had seen searched for prosecutrix (name withheld) inside the house and she was not found there in the house. She thought that she might have gone to the house of her Tai and would return after some time but she did not turn up. Her husband had received call from prosecutrix (name withheld) and she told about some accident and then, her husband went to Mahavir Hospital. In the late night, she had also gone to Mahavir Hospital. At that time, prosecutrix (name withheld) 72 of 152 73 FIR No. 171/10 PS - Shahbad Dairy was unconscious. In the Hospital, she had come to know that prosecutrix (name withheld) had been cut on the railway track and she was having injuries in her both legs. She does not know how she had met with an accident. After one or two days, prosecutrix (name withheld) regained her consciousness and told her that accused Dev used to harass her and for that reason, she had gone to kill herself. She does not know why accused Dev used to harass her daughter. Prosecutrix (name withheld) had told her that Dev used to tease her while she used to go to and return from School. Dev used to ask her for friendship and relations but prosecutrix (name withheld) refused saying that after 23 years, she will be major and then she can get married. She had also told her that accused assured prosecutrix (name withheld) that he would marry her when would be major but when prosecutrix (name withheld) told accused that she had become major, accused refused to marry her. (Objected to). Police never met her and never recorded my statement.
PW10 - Laxmi Devi was also crossexamined by the Learned Addl. PP for the State as she was resiling from her previous statement wherein she deposed that she had not stated to the Police that on 17/07/2010, when she asked her daughter prosecutrix (name withheld) 73 of 152 74 FIR No. 171/10 PS - Shahbad Dairy that her age was of marriage, then prosecutrix (name withheld) told her that she had acquaintance with one boy Dev who was of our caste and was running shop in the village and also asked her to settle the marriage with him. She had not stated to the Police that she alongwith her daughter prosecutrix (name withheld) reached at the shop of Dev, accused present in Court, and when prosecutrix (name withheld) asked accused to have the conversation about marriage with prosecutrix (name withheld) on this, accused flatly refused to marry prosecutrix (name withheld). She had not stated to the Police in her statement that on hearing this, prosecutrix (name withheld) became angry and started scuffling with accused and on this, many other public persons from the street also gathered there and then prosecutrix (name withheld) had called the PCR. She had not stated before the Police in her statement that her daughter prosecutrix (name withheld) had attempted to suicide for the reason that the accused had given her assurance of marriage and under said inducement, accused had physical relations with her daughter and in order to save her honour, her daughter had attempted to kill herself. She had not stated to the Police in her statement that during the four years prior to the day of incident, when her daughter was minor, 74 of 152 75 FIR No. 171/10 PS - Shahbad Dairy accused had spoiled her life and used to had physical relations as husband and wife after making her to eat or drink something laced with intoxicating substance. (Confronted with statement dated 26/08/2010 now Ex. PW10/A where all such facts are so recorded). She negated the suggestions that in her presence, accused present in Court, had refused to marry her daughter that he was of different caste or that accused had raped my daughter on the pretext that he would marry her when would attain the age of majority.
During her crossexamination as was conducted by the learned counsel for the accused, PW10 - Laxmi Devi has negated the suggestions that the accused did not use to harass or tease prosecutrix (name withheld) at any point of time or that she is deliberately introducing the fact that prosecutrix (name withheld) told her about the harassment and teasing while she used to pass from the shop of accused or that she had become a false witness in this regard and deposing falsely.
There is nothing in the crossexamination of PW4 - Daya Kishan @ Lal and PW10 - Laxmi Devi so as to impeach their 75 of 152 76 FIR No. 171/10 PS - Shahbad Dairy 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, clear, cogent, reliable and having a ring of truth. There is nothing in their statements to suggest that they had any animus against the accused to falsely implicate him in the case. They have deposed the facts as to what they perceived, observed and experienced.
17. The fact that accused Vipin Nahar was running a mobile shop at Shop No. 65/2, Shahbad Daulat Pur, Delhi, for the last four years prior to the incident has been proved by PW3 Sh. Ved Prakash, the landlord.
At the cost of repetition, PW3 Sh. Ved Prakash in his examinationinchief has deposed that he knows accused Vipin present in the Court (correctly identified). He (accused) used to run his mobile shop in his (PW3) tenanted Shop No. 65/2, Shahbad Daulatpur, Delhi for the last four years prior to the incident. He (PW3) had learnt that report was lodged and Police had come at his shop in which accused was 76 of 152 77 FIR No. 171/10 PS - Shahbad Dairy running his mobile shop. He (PW3) had learnt that Prosecutrix (name withheld) who was residing in their neighbourhood was involved with the accused and accused was having illicit relations with her. After that Police case was registered. He (PW3) had also learnt that Prosecutrix (name withheld ) had jumped in front of train and her both legs were imputed (amputated).
Despite grant of opportunity PW3 Ved Prakash was not crossexamined on behalf of the accused. Nor the said factum of running a mobile shop in Shahbad Daulat Pur, Delhi, has been disputed by the accused.
The testimony of PW3 Sh. Ved Prakash also corroborates the testimony of PW1 Prosecutrix and PW4 Daya Kishan, her father.
PW1 Prosecutrix in her examinationinchief has specifically deposed that : "Accused used to run his mobile shop near my house since 2004 to 2005, the shop of accused false on the way to my school and I used to pass from there".
PW4 Daya Kishan @ Lal in his examinationinchief has specifically deposed that : "Accused was running his STD shop in front of my street in 77 of 152 78 FIR No. 171/10 PS - Shahbad Dairy which my house was situated".
"Ved Prakash in whose shop accused was tenant and was running his STD shop was also present there".
On the aspect that the accused was running a mobile/STD shop under the tenancy of PW3 Ved Prakash, the landlord, there is nothing in the crossexamination of PW1 Prosecutrix and PW4 Daya Kishan @ Lal, her father so as to impeach their creditworthiness.
18. While analysing the testimonies of PW1 - Prosecutrix, PW4
- Daya Kishan and PW10 - Laxmi Devi as discussed hereinabove inspite of incisive crossexamination nothing has come out in the statements of PW1 - Prosecutrix, PW4 - Daya Kishan and PW10 - Laxmi Devi which may throw even a slightest doubt on the prosecution version of the incident. Though, the suggestion by the defence to PW1 Prosecutrix that accused is innocent or that he has been falsely implicated at the instance of her parents or that in order to save her parents from prosecution for being responsible of her railway incident or that the story of forcible sexual intercourse has been concocted or that 78 of 152 79 FIR No. 171/10 PS - Shahbad Dairy four years period was also deliberately and falsely introduced in order to make out a false case against the accused or that after the railway incident, she was conscious and in full sense at the time of reaching Bhagwan Mahaveer Hospital or that she had given the history to the Doctor as train accident or that she and her father blamed nobody for the railway incident or that her father conceded before the Police on that day that no one was responsible for the railway incident or that accused has not committed any wrong act with her at any point of time as deposed by her or that accused never harassed, pressurized or forced her for any purpose whatsoever or that complaint Ex. PW1/A is a fabricated documents, prepared after due deliberation and consultations with her parents and relatives in order to falsely implicate the accused or that she is deposing falsely and the suggestions to PW4 - Daya Kishan that he had stated correct facts before ASI Suresh Chand and after understanding the contents of the same he had signed the same dated 17/07/2010 and 24/07/2010 or that he is deliberately denying those statements or that later on, a false and fabricated story was concocted and the present case was got registered against the accused or that he had deposed falsely with regard to his visits to the Police Stations or with 79 of 152 80 FIR No. 171/10 PS - Shahbad Dairy regard to the fact that his signatures were taken on blank papers or that accused has nothing to do with the injuries to the prosecutrix or that complaint Ex. PW4/A is a fabricated complaint and the suggestions to PW10 - Laxmi Devi that the accused did not use to harass or tease prosecutrix (name withheld) at any point of time or that she is deliberately introducing the fact that prosecutrix (name withheld) told her about the harassment and teasing while she used to pass from the shop of accused or that she had become a false witness in this regard and deposing falsely were put, which were negated by the said PWs but the same have not at all being made probable much established by any cogent evidence. Further there is not an iota of evidence or even a suggestion that the accused has been falsely implicated because of animosity.
19. 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 80 of 152 81 FIR No. 171/10 PS - Shahbad Dairy Medical jurisprudence and Toxicology (Twenty First Edition) at page 369 which reads as : "Thus to constitute the offence of rape it is not necessary that there should be complete penetration of penis with emission of semen and rupture of hymen. Partial penetration of the penis within the labia majora or the vulva or pudenda with or without emission of semen or even an attempt at penetration is quite possible to commit legally the offence of rape without producing any injury to the genitals or leaving any seminal stains. In such a case the medical officer should mention the negative facts in his report, but should not give his opinion that no rape had been committed. Rape, is crime and not a medical condition. Rape is a legal term and not a diagnosis to be made by the medical officer treating the victim. The only statement that can be made by the medical officer is that there is evidence of recent sexual activity. Whether the rape has occurred or not is a legal conclusion, not a medical one."
In Parikh's Textbook of Medical jurisprudence and Toxicology, the following passage is found : "Sexual intercourse : In law, this term is held to mean the slightest degree of penetration of the vulva by the penis with or without emission of semen. It is therefore quite possible to commit legally the offence of rape without producing any injury to the genitals or leaving any seminal stains."
81 of 152 82 FIR No. 171/10 PS - Shahbad Dairy In Encyclopedia of Crime and Justice (Vol. 4) at page 1356, it is stated : ".....even slight penetration is sufficient and emission is unnecessary."
On analysing the testimony of PW1 - Prosecutrix in the light of the medical evidence, vide MLC Ex. PW5/A and Ex. PW8/A of the prosecutrix together with the MLC of accused Vipin Nahar @ Dev Ex. PW9/A, as discussed hereinbefore, 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 Vipin Nahar @ Dev with PW1 prosecutrix without her consent.
20. Learned Counsel for the accused submitted that PW1 -
82 of 152 83 FIR No. 171/10 PS - Shahbad Dairy prosecutrix and PW4 - Daya Kishan, her father in their statements recorded on 17/07/2010 by PW7 - ASI Suresh Chand have not made any allegations of rape or the reason of injuries caused to the prosecutrix due to any illegal act of the accused. Learned Counsel for accused further submitted that PW7 - ASI Suresh Chand recorded the initial version of PW1 - prosecutrix and PW4 - Daya Kishan, her father on 17/07/2010. Both the statements were got exhibited by the prosecution & PW7 in his examinationinchief exhibited the same and in his crossexamination he categorically stated that these statements were recorded by him without any addition or omission and also stated that it was an accident for which no one can be blamed as he recorded this fact in the statements. Both these statements Ex. PW7/A and Ex. PW7/B have not even a single allegation of rape rather it is stated in the statements that the injury was caused to the prosecutrix due to accident. Both these witnesses did not utter even a single word to the effect that the incident was caused because of the accused in any manner. The prosecution never challenged these statements or their veracity and no suggestion was given to PW7 that he wrongly fabricated these statements. Therefore, these statements become the case of the prosecution as the examinationinchief of PW7 83 of 152 84 FIR No. 171/10 PS - Shahbad Dairy went unchallenged, thus the prosecution can not run away from the initial version recorded by PW7. PW1 Prosecutrix and PW4 Daya Kishan have made false statements before the Court that Police got signed blank papers from them on 17/07/2010 which fact is contradicted by the testimony of PW7. Neither PW1 nor PW4 made any complaint to the Police regarding their allegedly obtaining signature on blank paper by the Police on 17/07/2010 and for the first time in the Court deposition they stated this fact which can not be believed by any stretch of imagination. Even in the MLC prepared at Mahavir Hospital the prosecutrix was conscious, oriented and declared fit to made statement and the history given by train accident which is corroborated by the statements recorded by PW7.
I have carefully perused and analysed the evidence on record.
It is a settled principle that statements of the witnesses have to be read as a whole and not in a manner to pick up a sentence in isolation from the entire statement and ignoring its proper reference.
84 of 152 85 FIR No. 171/10 PS - Shahbad Dairy It is not in dispute that on 17/07/2010, PW1 prosecutrix was admitted in an injured condition in Mahavir Hospital.
PW1 - prosecutrix in her examinationinchief has deposed that : "On 17/07/2010 in the evening, I went to the Railway Line and lied there in front of train and in that incident, both my legs got severe injuries. On of my leg was amputated and another leg was severely damaged and nowadays, I am walking with the help of clutches. I was admitted in Bhagwan Mahaveer Hospital. I remained there for overnight."
PW7 ASI Suresh Chand in his examinationinchief has deposed which is reproduced and reads as under : "On 17/07/2010, he was posted at PP - Kishan Ganj on temporary duty. On that day, on receipt of DD No. 18, PP Kishan Ganj, I reached at Rampura Railway Line near Quarters before Punjabi Bagh Flyover. HC Devender was also with me. At the spot, we had learnt that injured girl was taken to Shakur Basti in a train. By that time, I had received call DD No. 19 by which I had learnt that one girl was lying in an injured condition at Shakur Basti Railway Platform. We reached thee and from there, we had learnt that injured girl was sent to Mahabir Hospital by the CATS Ambulance. We reached at Mahavir Hospital and found that prosecutrix (name withheld), daughter of Daya Kishan was admitted in the Hospital. I made inquiries from that girl. I recorded statement of prosecutrix (name withheld). Attested copy of the 85 of 152 86 FIR No. 171/10 PS - Shahbad Dairy statement is already on judicial record, same is now Ex. PW7/A. sh. Daya Kishan, father of prosecutrix (name withheld) also met me in the Hospital. I also recorded his statement also. Attested copy of the same is already on judicial record and same is now Ex. PW7/B. I collected the MLC and returned to the Police Post."
From the aforesaid narration of PW7 - ASI Suresh Chand, it is indicated that on 17/07/2010 he recorded the statement of PW1 - prosecutrix Ex. PW7/A at the time when she was admitted in Mahavir Hospital in an injured condition and on 17/07/2010 he had also recorded the statement of PW4 - Daya Kishan, father of prosecutrix Ex. PW7/B. PW1 - prosecutrix in her examinationinchief has specifically deposed that : "Railway Police had also come to Bhagwan Mahavir Hospital and they obtained my signatures on some blank papers."
Moreover, PW1 - prosecutrix during her crossexamination recorded on 20/05/2011 has categorically deposed which is reproduced and reads as under : "I was very much upset. I was sitting by the side of railway line and it was place full of bushes. From there I moved little head 1015 86 of 152 87 FIR No. 171/10 PS - Shahbad Dairy paces. I had not noticed any train coming from any side. All of a sudden I heard the noise of train coming from my backside and then I could gather that train had come. I got very much upset and I myself of my own came in front of train to finish myself. I was at the distance of 45 feet from the track. I had sensed the train from not much distance. Then I jumped before the moving train.
After that train stopped and passengers of that train boarded me in the same train and taken to next railway station and there Police was present. Ambulance had also come there and I was taken to Hospital by the ambulance. In the train, I had told the mobile number of mine which I had left at my house. My father had reached at the Hospital after I was given initial treatment. (Vol. Police had taken my signatures and thumb impression on blank papers before the arrival of my father at the Hospital whereas I was not in any condition to speak). I told such fact to my father after oneone & half months at Safdarjung Hospital. I had told my father within 23 days of the accident as to why I had done that. Again said I was not in a position to speak to my father on the date of accident. Doctor had made queries from me but I was not able to tell anything to them. No PCR vehicle or Police had come at the spot where the accident had taken place. Railway Police had come there.
Railway Police did not record my statement at that time. Neither myself nor my father did make any complaint that my signatures and thumb impression were taken on blank papers and I revealed this fact before the Court for the first time. (Vol. Nobody contacted us to record my statement)."
From the aforesaid narration, it is clearly indicated that PW1 87 of 152 88 FIR No. 171/10 PS - Shahbad Dairy
- prosecutrix had specifically deposed that at the time when she was admitted in Hospital (Mahavir Hospital) in an injured condition, Police had taken her signatures and thumb impression on blank papers before the arrival of her father at the Hospital whereas she was not in any condition to speak. Doctor had made queries form her but she was not able to tell anything to them.
PW4 - Daya Kishan during his crossexamination recorded on 25/01/2012 has specifically deposed that : "On 17/07/2010, I had gone to Hospital. Police met me there and made inquiries from me. My signatures were obtained on blank paper and I do not know what was written on those papers thereafter."
From the aforesaid narration of PW4 - Daya Kishan, father of the prosecutrix, it is clearly indicated that on 17/07/2010, he had gone to Hospital. Police met him there and made inquiries from him. His signatures were obtained on blank paper and he does not know what was written on those papers thereafter.
PW4 - Daya Kishan during his examinationinchief has 88 of 152 89 FIR No. 171/10 PS - Shahbad Dairy specifically deposed that : "In the Hospital I had seen prosecutrix (name withheld) was admitted in the Hospital and she was on bed and her one leg was amputated and other was having severe injuries. The condition was very bad. Two Police officials probably from Railway were there. They made some formal enquiries from me about prosecutrix (name withheld) and then they asked me to sign two blank papers on which signatures of prosecutrix (name withheld) were already there. I had sign on those two blank papers and then they left from there. We remained in Hospital whole night and next morning prosecutrix (name withheld) was sent to Safdarjung Hospital."
So far as the part of deposition of PW1 - prosecutrix and that of PW4 - Daya Kishan, her father that Police had obtained their signature on blank papers is concerned, it is evident from the record that during the crossexamination of PW7 - ASI Suresh Chand, the accused did not voice his concern regarding the same. He was the only competent witness who would have been fully capable of explaining correctly the factual situation.
Moreover, during the entire incisive and lengthy cross examination of PW1 - prosecutrix, it was not suggested/put to her that Police had not taken her signatures or thumb impression on blank papers 89 of 152 90 FIR No. 171/10 PS - Shahbad Dairy on 17/07/2010. For such failure accused is to blame himself and none else.
90 of 152 91 FIR No. 171/10 PS - Shahbad Dairy It is settled law that if there is no crossexamination of a prosecution witness in respect of a statement of fact, it will only show the admission of that fact (Ref.: Wahid Ahmed and Ors. Vs. State (NCT of Delhi) 2011 VII AD (DELHI) 276).
In the circumstances, there is no substance in the plea so raised by the Learned Counsel for the accused.
21. Learned Counsel for accused submitted that the prosecutrix got injuries due to accident and nobody was responsible for the same but later on it was given a false colour and the accused was deliberately shown to be the reason of injuries caused to the prosecutrix which cannot be accepted and the prosecution and the prosecutrix cannot be allowed to have two version of the reason of the injuries caused to the prosecutrix. Learned Counsel for accused further submitted that DD No. 18 PP dated 17/07/2010 recorded at PP Kishan Ganj Railway stated that "Ek lady train se gir gayi hai". Same is exhibited as Ex. PW7/F. The MLC of the prosecutrix showing the history as train accident, which was prepared by the Doctor and the information of name, parentage, age, addresses were 91 of 152 92 FIR No. 171/10 PS - Shahbad Dairy given by the prosecutrix as she was conscious and oriented at the time of preparation of the MLC. Therefore, it is clear that all the above details including history was given by the prosecutrix herself as no other person could give the above details. PW7 made inquiries from PW1 and PW4 and recorded their statements as Ex. PW7/A and Ex. PW7/B and in both statements it is categorically mentioned that it was an accident. PW7 made DD Entry No. 21 PP dated 17/07/2010 after coming back to the PP and also recorded that it was an accident and in both the above statements it was clearly recorded that nobody was responsible for the accident. PW15 Mr. J. D. Pal, Ambulance Officer CATS also stated that he received the information of railway accident.
I have carefully perused and analysed the evidence on record.
At the cost of repetition, it is a settled principle that statements of the witnesses have to be read as a whole and not in a manner to pick up a sentence in isolation from the entire statement and ignoring its proper reference.
It is not in dispute that on 17/07/2010, PW1 prosecutrix was admitted in an injured condition in Mahavir Hospital.
92 of 152 93 FIR No. 171/10 PS - Shahbad Dairy PW1 - prosecutrix in her examinationinchief has deposed that : "On 17/07/2010 in the evening, I went to the Railway Line and lied there in front of train and in that incident, both my legs got severe injuries. On of my leg was amputated and another leg was severely damaged and nowadays, I am walking with the help of clutches. I was admitted in Bhagwan Mahaveer Hospital. I remained there for overnight."
As regards the plea raised with regard to recording of statements Ex. PW7/A and Ex. PW7/B by PW7 - ASI Suresh Chand, the same has already been dealt with hereinbefore.
PW7 - ASI Suresh Chand, has deposed that on 17/07/2010, he was posted at PP Kishan Ganj as temporary Duty Officer. On that day, on receipt of DD No. 18, PP Kishan Ganj, attested copy of which is already on judicial record is now Ex. PW7/E he reached at Rampura Railway Line near Quarters before Punjabi Bagh Flyover. HC Devender was also with him. At the spot, they had learnt that injured girl was taken to Shakur Basti in a train. By that time, they had received call vide DD No. 19A Ex. PW7/F by which they had learnt that one girl was lying in an injured condition at Shakur Basti Railway Platform. They reached 93 of 152 94 FIR No. 171/10 PS - Shahbad Dairy there and from there they had learnt that injured girl was sent to Mahavir Hospital by Cats Ambulance. They reached at Mahavir Hospital and found that prosecutrix (name withheld) D/o Daya Kishan was admitted in the Hospital and he made inquiry from that girl (prosecutrix). He recorded statement of prosecutrix (name withheld). Attested copy of which is already on judicial record, same is now, Ex. PW7/A. Sh. Daya Kishan, father of prosecutrix (name withheld) also met him in the Hospital. He also recorded his statement. Attested copy of the same is already on judicial record and same is now Ex. PW7/B. He also collected the MLC and returned to the Police Post. On 24/07/2010, he again received DD No. 11 attested copy of which is already on judicial record Ex. PW7/H from Safdarjung Hospital and reached there where he found injured/prosecutrix (name withheld) admitted as she was referred from Bhagwan Mahavir Hospital. In the Safdarjung Hospital, again prosecutrix (name withheld) and her father had given their statements and he recorded the same. Attested copies of their statements are already on judicial record. Statement of prosecutrix (name withheld) dated 24/07/2010 is now Ex. PW7/C and that of her father Daya Kishan is now Ex. PW7/D. As the injured (prosecutrix) was under treatment, the DD 94 of 152 95 FIR No. 171/10 PS - Shahbad Dairy Entries were kept pending and no action was initiated. After return to Police Post on 17/07/2010, he had lodged DD No. 21A, Ex. PW7/G. Later on, injured (prosecutrix) had made complaint in the Police Station. During course of investigation, his statement was recorded.
PW15 - Mr. J. D. Pal in his examinationinchief has deposed that on 17/07/2010 he was posted as Incharge Alpha7. On that day, it was 6:10 p.m., he received the information from PCR regarding the railway accident at Shakur Basti Railway Station. Thereafter, he alongwith staff reached at Shakur Basti Railway Station where they found one lady/prosecutrix (name withheld) there in injured condition and her both legs were found imputed (amputated). Thereafter, they took her to Bhagwan Mahavir Hospital and got admitted. He has brought Patient Assessment Proforma Register. The copy of the relevant entry is Ex. PW15/A (OSR) bearing his signature at point 'A'.
On careful perusal and analysis of the testimonies of PW7 - ASI Suresh Chand and PW15 - Mr. J. D. Pal, it is found that they have deposed regarding the facts which they performed, perceived and observed.
95 of 152 96 FIR No. 171/10 PS - Shahbad Dairy PW8 - Dr. Ajay Dalal in his examinationinchief has deposed that he has seen MLC No..1057/10, CR No. 26554 of patient/prosecutrix (name withheld) D/o Daya Kishan, Age - 18 years, female dated 17/07/2010, patient was brought to casualty by Alpha - 7, CATS Incharge, J. D. Paul at 6:49 p.m. with alleged history of train accident, wheel passed over B/L lower limbs. Patient was conscious oriented. She was given treatment. On local examination there was total imputation of left thigh. No active bleeding, contamination, present, no distal pulsation. Deglowing injury over right thigh extending uptill knee, contamination present, no active bleeding distal pulse present. Patient was examined and referred to orthopardics specialist for further treatment. MLC was prepared by him (PW8), attested copy of the MLC is on judicial record and is now Ex. PW8/A bears his signature at point 'A'. He made his endorsement sign at point 'B' and endorsement at point 'C' of MLC Ex. PW8/A that patient was fit for statement.
Despite grant of opportunity PW8 - Dr. Ajay Dalal was not crossexamined on behalf of accused.
PW1 - prosecutrix during her crossexamination recorded on 20/05/2011 has specifically deposed that at the Hospital (Bhagwan 96 of 152 97 FIR No. 171/10 PS - Shahbad Dairy Mahavir Hospital) she was not in any condition to speak. Doctor had made queries from her but she was not able to tell anything to them.
At the cost of repetition, the relevant part of cross examination of PW1 - prosecutrix recorded on 20/05/2011 is reproduced and reads as under : "Ambulance has also come there and I was taken to Hospital by the ambulance. In the train, I had told the mobile number of mine which I had left at my house. My father had reached at the Hospital after I was given initial treatment. (Vol. Police had taken my signatures and thumb impression on blank papers before the arrival of my father at the Hospital whereas I was not in any condition to speak). I told such fact to my father after oneone & half months at Safdarjung Hospital. I had told my father within 23 days of the accident as to why I had done that. Again said I was not in a position to speak to my father on the date of accident. Doctor had made queries from me but I was not able to tell anything to them."
(Underlined by me) On a conjoint reading of MLC of PW1 - prosecutrix Ex. PW8/A dated 17/07/2010 and her said part of crossexamination as reproduced hereinabove. When a minor girl/prosecutrix in an injured condition, who has suffered train accident and train wheels have passed over her both lower limbs, and she was not in a condition to speak, one is 97 of 152 98 FIR No. 171/10 PS - Shahbad Dairy left wandering as to how it is expected that she would be able to give the alleged history for taking such extreme step in such adverse circumstances.
In the circumstances, there is no substance in the plea so raised by the Learned Counsel for the accused.
22. Learned Counsel for accused submitted that the complaining typed statement Ex. PW1/A sent by the prosecutrix is fabricated, concocted and false statement created after the due deliberations and consultations. Learned Counsel for accused further submitted that the complaining statement Ex. PW1/A is the statement upon which the FIR was registered. The same is a typed statement and the prosecutrix only signed the same. Admittedly when this typed statement was received by the Police on 07/08/2010, the prosecutrix was in Safdarjung Hospital. The fact that the complaining statement is a typed statement and after typing the same the same got signed by the prosecutrix, clearly raise grave suspicion upon its authenticity. The prosecutrix PW1 in her crossexamination recorded on 18/08/2011 98 of 152 99 FIR No. 171/10 PS - Shahbad Dairy deposed that, "I do not remember the exact date when I sent such complaint but it was probably 07/08/2010. I do not remember as to who got complaint Ex. PW1/A typed and I do not remember the date when I signed the same. I signed the same in the Hospital when it was brought to me by my father". This piece of evidence clearly exposed the prosecutrix and her father and also proved the fact that the statement was got prepared and typed by the father and then the same was got signed from the prosecutrix. It also proves that the document Ex. PW1/A is a fabricated statement prepared by the father of the prosecutrix in order to save himself from prosecution as he stated in his statement before PW7 that he was responsible for the accident. PW4 in his chief has stated that, "IO of the case came to Safdarjung Hospital on 20/08/2010 and recorded the statement of prosecutrix (name withheld). Prosecutrix (name withheld) had given her written complaint. At that time I was not present in the Hospital. My wife Laxmi was present there." PW4 clearly deposed falsely in this regard and never disclosed that he got the complaining statement typed as deposed by the prosecutrix. This further proves that the complaining typed statement Ex. PW1/A was got fabricated and manufactured by PW4 and the same was thrust upon the 99 of 152 100 FIR No. 171/10 PS - Shahbad Dairy prosecutrix to sign, therefore the same is a false and fabricated document created after due deliberations and consultations under legal advise in order to blackmail the accused to marry the injured prosecutrix as her marriage prospects were bleak and also to save himself from prosecution as PW4 himself admitted before PW7 that the incident was caused because of him. Therefore no credence can be given to this typed belated statement more particularly when the initial statement given by the prosecutrix and PW4 were not naming the accused in any manner whatsoever.
I have carefully perused and analysed the evidence on record.
At the cost of repetition, when a minor girl/prosecutrix in an injured condition, who has suffered train accident and train wheels have passed over her both lower limbs, and she was not in a condition to speak, one is left wandering as to how it is expected that she would be able to give the alleged history for taking such extreme step in such adverse circumstances.
100 of 152 101 FIR No. 171/10 PS - Shahbad Dairy PW1 - prosecutrix during her examinationinchief recorded on 29/04/2011 has specifically deposed that : "After some time, when I partially recovered from my injuries, I made a report to the Police against the conduct of accused. Complaint is now exhibited as Ex. PW1/A bears my signatures at point 'A'. No action was taken by Police on my that complaint at that time. Later on, I had again made complaints to SHO which is now exhibited as Ex. PW1/B and Ex. PW1/C bears my signatures at points 'A'."
PW1 - prosecutrix during her crossexamination recorded on 18/08/2011 has specifically deposed that : "Police did not record my statement. Police did not make any enquiry from me. Vol. I had myself told everything to the Police. I told such facts to the Police many times. I told these facts to the Police on 17/07/2010 when PCR was called at the shop of accused."
PW1 - prosecutrix during her crossexamination recorded on 18/08/2011 has specifically deposed that : "I do not know the date when or where my father had gone to the Police to lodge the report of rape incident. I had sent my complaint in my own handwriting through my father from Safdarjung Hospital. I do not remember the exact date when I sent such complaint but it was probably 07/08/2010. I do not remember as to who got complaint Ex. PW1/A typed and I do not remember the date when I 101 of 152 102 FIR No. 171/10 PS - Shahbad Dairy signed the same. I signed the same at Hospital when it was brought there by my father."
At the cost of repetition, PW4 - Daya Kishan during his examinationinchief recorded on 12/10/2011 has specifically deposed that : "In Safdarjung Hospital prosecutrix (name withheld) remained admitted for many months where her operation and dressing were done. We came in the end of November, 2010. Prosecutrix (name withheld) was discharged from the Hospital. Even after that she was under treatment from that Hospital. When prosecutrix (name withheld) was shifted to Safdarjung Hospital after two days she had disclosed to my wife Laxmi Devi that accused Vipin was making physical relations (Najayaj) for last 34 years and was alluring her and induced her by saying that accused would marry prosecutrix (name withheld) when she will become major. My wife had disclosed all these facts to me and when I enquired from prosecutrix (name withheld) she had again disclosed all these facts to me. I went to PS - Prehlad Pur to lodge the report against accused Vipin but Police did not lodge my report. Many times I went to PS to lodge the report but they did not lodge the report. I appeared before DCP Outer District who sent me to ACP of our area. On the direction of DCP I was sent to SHO of the area and then only Police took action on my complaint. For one month I roamed one door to another to lodge the report but nothing happened and my report was lodged only when I appeared before the DCP. I have brought the received copy of my complaint which I had made to DCP, Rohini. Same 102 of 152 103 FIR No. 171/10 PS - Shahbad Dairy is retained on record now Ex. PW4/A. IO of the case came to Safdarjung Hospital on 20/08/2010 and recorded the statement of prosecutrix (name withheld). prosecutrix (name withheld) had given her written complaint. At that time I was not present in the Hospital. My wife Laxmi Devi was there. On 25/08/2010 accused present in the Court today was arrested on my identification. I had signed documents of his arrest. The arrest memo is Ex. PW4/B and personal search memo is Ex. PW4/C bear my signatures at point 'A'. My daughter attempted to commit suicide by throwing herself in front of moving train as she was ashamed with what had happened with her and because of conduct of accused."
On a conjoint reading of testimonies of PW1 -
prosecutrix and that of PW4 - Daya Kishan, her father, the circumstances for filing the complaint Ex. PW1/A on the basis of which FIR Ex. PW2/A dated 25/08/2010 was registered as well as for filing of complaints Ex. PW1/B, Ex. PW1/C and Ex. PW4/A stands sufficiently and satisfactorily explained.
In the circumstances, there is no substance in the plea so raised by the Learned Counsel for the accused.
23. Learned Counsel for accused submitted that prosecution has failed to explain the delay in the registration of the case. Learned 103 of 152 104 FIR No. 171/10 PS - Shahbad Dairy Counsel for accused further submitted that prosecutrix made a categorical statement on 17/07/2010 wherein she did not level any allegation of rape but after good 21 days of the incident her father prepared a typed statement from outside and got signed from the prosecutrix and the same was given to the Police. There is no reasonable explanation of her of such delay of 21 days. Had there been no statement of the prosecutrix on 17/07/2010 and the statement dated 07/08/2010 would be first due to reasonable excuses the matter was reported belatedly but in the present scenario when the earlier version was lacking any accusation of rape then the prosecution and the prosecutrix cannot be allowed to have the benefit of delayed statement and the delay of 21 days in making the accusation of rape is fatal for the prosecution. The delayed accusation contains coloured version and cannot be taken as an evidence against the accused on its face value.
I have carefully perused and analysed the evidence on record.
At the cost of repetition, when a minor girl/prosecutrix in an injured condition, who has suffered train accident and train wheels have 104 of 152 105 FIR No. 171/10 PS - Shahbad Dairy passed over her both lower limbs, and she was not in a condition to speak, one is left wandering as to how it is expected that she would be able to give the alleged history for taking such extreme step in such adverse circumstances.
PW1 - prosecutrix during her examinationinchief recorded on 29/04/2011 has specifically deposed that : "After some time, when I partially recovered from my injuries, I made a report to the Police against the conduct of accused. Complaint is now exhibited as Ex. PW1/A bears my signatures at point 'A'. No action was taken by Police on my that complaint at that time. Later on, I had again made complaints to SHO which is now exhibited as Ex. PW1/B and Ex. PW1/C bears my signatures at points 'A'."
PW1 - prosecutrix during her crossexamination recorded on 18/08/2011 has specifically deposed that : "I do not know the date when or where my father had gone to the Police to lodge the report of rape incident. I had sent my complaint in my own handwriting through my father from Safdarjung Hospital. I do not remember the exact date when I sent such complaint but it was probably 07/08/2010. I do not remember as to who got complaint Ex. PW1/A typed and I do not remember the date when I signed the same. I signed the same at Hospital when it was brought there by my father."
105 of 152 106 FIR No. 171/10 PS - Shahbad Dairy At the cost of repetition, PW4 - Daya Kishan during his examinationinchief recorded on 12/10/2011 has specifically deposed that : "In Safdarjung Hospital prosecutrix (name withheld) remained admitted for many months where her operation and dressing were done. We came in the end of November, 2010. Prosecutrix (name withheld) was discharged from the Hospital. Even after that she was under treatment from that Hospital. When prosecutrix (name withheld) was shifted to Safdarjung Hospital after two days she had disclosed to my wife Laxmi Devi that accused Vipin was making physical relations (Najayaj) for last 34 years and was alluring her and induced her by saying that accused would marry prosecutrix (name withheld) when she will become major. My wife had disclosed all these facts to me and when I enquired from prosecutrix (name withheld) she had again disclosed all these facts to me. I went to PS - Prehlad Pur to lodge the report against accused Vipin but Police did not lodge my report. Many times I went to PS to lodge the report but they did not lodge the report. I appeared before DCP Outer District who sent me to ACP of our area. On the direction of DCP I was sent to SHO of the area and then only Police took action on my complaint. For one month I roamed one door to another to lodge the report but nothing happened and my report was lodged only when I appeared before the DCP. I have brought the received copy of my complaint which I had made to DCP, Rohini. Same is retained on record now Ex. PW4/A. IO of the case came to Safdarjung Hospital on 20/08/2010 and recorded the statement of prosecutrix (name withheld). prosecutrix (name withheld) had given her written complaint.
106 of 152 107 FIR No. 171/10 PS - Shahbad Dairy At that time I was not present in the Hospital. My wife Laxmi Devi was there. On 25/08/2010 accused present in the Court today was arrested on my identification. I had signed documents of his arrest. The arrest memo is Ex. PW4/B and personal search memo is Ex. PW4/C bear my signatures at point 'A'. My daughter attempted to commit suicide by throwing herself in front of moving train as she was ashamed with what had happened with her and because of conduct of accused."
On a conjoint reading of the testimonies of PW1 - prosecutrix and that of PW4 - Daya Kishan, her father, the delay in registering the report with the Police vide FIR Ex. PW2/A dated 25/08/2010 sufficiently and satisfactorily stands explained.
The sight cannot be lost of the fact that the Indian women has tendency to conceal offence of sexual assault because it involves her prestige as well as prestige of her family. Only in few cases, the victim girl or the family members has courage to go before the Police Station and lodge a case.
Delay in lodging of FIR is a normal phenomenon especially in cases like rape or outraging the modesty of a women, the aggrieved or the injured person or her relations will naturally think twice before giving a complaint to the police (Ref. Mohd. Habib Vs. State (Delhi 107 of 152 108 FIR No. 171/10 PS - Shahbad Dairy Administration) 1989 CRLJ 137 (Delhi).
The delay in a case of sexual assault, cannot be equated with the case involving other offences. There are several factors which weigh in the mind of the prosecutrix and her family members before coming to the police station to lodge a complaint. In a tradition bound society prevalent in India, more particularly, rural areas, it would be quite unsafe to throw out the prosecution case merely on the ground that there is some delay in lodging the FIR. (Ref. State of Himachal Pradesh V. Prem Singh AIR 2009 SC 1010).
Normally a woman would not falsely implicate for the offence of rape at the cost of her character. In Indian society, it is very unusual that a lady with a view to implicate a person would go to the extent of stating that she was raped. [Ref. Madan Lal Vs. State of MP (1997) 2 Crimes 210 (MP)].
The Hon'ble Supreme Court in case Karnel Singh Vs. State of M.P. (1995) 5 SCC 518, has held : "7.......The submission overlooks the fact that in India women are slow and hesitant to complain of such assaults and if the 108 of 152 109 FIR No. 171/10 PS - Shahbad Dairy prosecutrix happens to be a married person she will not do anything without informing her husband. Merely because the complaint was lodged less then promptly does not raise the inference that the complaint was false. The reluctance to go to the police is because of society's attitude towards such women; it casts doubt and shame upon her rather than comfort and sympathise with her. Therefore, delay in lodging complaints in such cases does not necessarily indicate that her version is false (emphasis added)."
The Hon'ble Supreme Court in Para 21 in case Rajinder V. State of H.P. AIR 2009 SC 3022 has interalia held : "21. In the context of Indian Culture, a woman victim of sexual aggression would rather suffer silently than to falsely implicate somebody. Any statement of rape is an extremely humiliating experience for a woman and until she is a victim of sex crime, she would not blame anyone but the real culprit. While appreciating the evidence of the prosecutrix, the Courts must always keep in mind that no selfrespecting woman would put her honour at stake by falsely alleging commission of rape on her and, therefore, ordinarily a look for corroboration of her testimony is unnecessary and uncalled for......."
The Hon'ble Supreme Court in Para 13 in case Om Prakash Vs. State of Uttar Pradesh AIR 2006 SC 2214 has interalia held : "13. It is settled law that the victim of sexual assault is not treated as accomplice and as such, her evidence does not require 109 of 152 110 FIR No. 171/10 PS - Shahbad Dairy corroboration from any other evidence including the evidence of a doctor. In a given case even if the doctor who examined the victim does not find sign of rape, it is no ground to disbelieve the sole testimony of the prosecutrix. In normal course a victim of sexual assault does not like to disclose such offence even before her family members much less before public or before the police. The Indian women has tendency to conceal such offence because it involves her prestige as well as prestige of her family. Only in few cases, the victim girl or the family members has courage to go before the police station and lodge a case......"
The Hon'ble Supreme Court in Para 20 in case 'Satyapal Vs. State of Haryana AIR 2009 SC 2190' has interalia held : "20. This Court can take judicial notice of the fact that ordinarily the family of the victim would not intend to get a stigma attached to the victim. Delay in lodging the First Information Report in a case of this nature is a normal phenomenon......."
In the case of 'Wahid Khan Vs. State of Madhya Pradesh', (2010) 2 SCC 9, the Hon'ble Supreme Court held : "It is a matter of common law that in Indian society any girl or woman would not make such allegations against a person as such she is fully aware of the repercussions flowing therefrom. If she is found to be false, she would be looked by the society with contempt throughout her life. For an unmarried girl, it will be difficult to find a suitable groom. Therefore, unless an offence has really been committed, a girl or 110 of 152 111 FIR No. 171/10 PS - Shahbad Dairy a woman would be extremely reluctant even to admit that any such incident had taken place which is likely to reflect on her chastity. She would also be conscious of the danger of being ostracized by the society. It would indeed be difficult for her to survive in Indian society which is, of course, not as forward looking as the western countries are."
In the circumstances, there is no substance in the plea so raised by the Learned Counsel for the accused.
24. Learned Counsel for the accused submitted that the testimony of prosecutrix is nothing but improved statement having contradictions on material particulars and containing false accusations. Therefore, she is not a reliable witness. Learned Counsel for accused further submitted that PW1 - prosecutrix improved in her Court deposition on material points and she was duly confronted with her previous statement where the improved version was absent. She has improved on the points as follows : "I had stated to the Police in my complaint Ex. PW1/A that accused had pressurized and forced me to make physical relations with him. (confronted with statement Ex. PW1/A where it is recorded that physical relation was made on false promise) I do not remember if I had 111 of 152 112 FIR No. 171/10 PS - Shahbad Dairy mentioned in my complaint Ex. PW1/A about the fact that accused had called me to his shop where he was having one cabin behind the shop and I went there and I was unaware about his intentions and for some time, accused had sweet talks with me and then offered me water and after having water, I lost my consciousness and slept and then accused had raped me and this happened four years back from today. (confronted with statement Ex. PW1/A where it is not recorded) Accused started threatening me regarding the objectionable photos of mine since June, 2010. I had mentioned in my complaint Ex. PW1/A about the fact that some days prior to the lodging of my report, accused started threatening me with my objectionable photographs. Vol. I had only told to the Police that accused started threatening me. I had mentioned in my complaint that after I became major, accused started playing with me and used to ignore me on the issue of marriage and accused used to call me and used to blackmail me and had physical relations with me many times. (confronted with statement Ex. PW1/A where it is not recorded in these words. However, it is recorded that now I became major and I told accused that I wanted him to meet my parents and on this, accused became angry and in between, on the promise of marriage, he did wrong 112 of 152 113 FIR No. 171/10 PS - Shahbad Dairy act with me). I do not remember if I had mentioned in my complaint Ex. PW1/A that I was fed up with the behaviour of accused and them on 17/07/2010, I rang up PCR and thought that Police would understand my problem and would save me from the cruelty of accused and then Police had reached in front of the shop of accused and villagers had also collected and I shouted for the help from Police and also told them about the conduct of accused and in between, my parents had also come there but Police had done nothing on my such complaint and in order to save our respect, I was sent to my house with my mother by my father and I could not bear this and became upset and thought that Police had not paid any heed to any of my relations and had done nothing (confronted with statement Ex. PW1/A where it is not so recorded). I had mentioned in my complaint Ex. PW1/A that on the evening of 17/07/2010, I went to railway line and lied there in front of train and railway Police had also come to Bhagwan Mahaveer Hospital and they had obtained my signatures on blank papers and my parents were also there in the Hospital and signatures of my father was also obtained by railway Police on blank papers. (confronted with statement Ex. PW1/A where it is not so recorded in these words, however, it is written that I left my house in 113 of 152 114 FIR No. 171/10 PS - Shahbad Dairy order to cut myself on the railway line and other remaining facts are not recorded) I had not mentioned in my complaint Ex. PW1/A that when I was in Safdarjung Hospital, my father had visited PS many times but no complaint was lodged (confronted with statement Ex. PW1/A where it is not so recorded). I do not remember if I had mentioned in my complaint that during the last four years, accused had made forcible physical relations with me and every time, he used to force me and since I was minor and was unable to understand the consequences of the conduct of accused (confronted with statement Ex. PW1/A where words "forcible physical relations" are not mentioned). Learned Counsel for accused further submitted that in her examinationinchief PW1 Prosecutrix stated that accused used to trouble her when she used to cross from outside his shop and used to pressurize for physical relations but in the crossexamination her above falsehood was exposed. She stated in her crossexamination that she did not complain to anybody regarding the trouble created by the accused and she also admitted that there were other shops as well and fellow students also used to accompany her from School and she admitted that she did not complained the acts of the accused to any person of the market or the passerby because he used to 114 of 152 115 FIR No. 171/10 PS - Shahbad Dairy act in such a manner that no one else was able to notice but before that she deposed that he used to come closer and used to pass comments and also used to throw piece of papers from first floor and also used to propose me. On the one hand she deposed that she had gone inside the shop of the accused then she said she had not gone there voluntarily then she said I went there as he had called me and then she said I had gone to meet him and then she said accused was troubling me even before the said visit. These changed versions after every breath clearly proves that she is deposing falsely. In her examinationinchief she stated that the accused offered her water and after taking water she lost consciousness and slept. But in the crossexamination she said that firstly he offered water and later he used to give some edible. She further stated that she does not remember that what exactly he used to offer her. Then she stated that after 45 minutes of taking water she used to start feeling sleepy and besides accused there used to be three more persons used to work in his shop and later on the accused had also employed one lady. She further deposed that she cannot tell as to when she regained consciousness and she rebuked accused but strangely she did not report the matter to anyone though there was no allegation of threat leveled.
115 of 152 116 FIR No. 171/10 PS - Shahbad Dairy The above testimony is quite unnatural and improbable. Accused cannot rape in presence of so many persons and she further admitted that I had not stated to my parents or to any other about my rape was being done by accused and she only stated about rape before the Police for the first time at the time of lodging the Police report whereas PW4 states that after two days of the incident the prosecutrix told this fact to her mother and she told him whereas PW10 - Laxmi Devi the mother of the prosecutrix stated in her examinationinchief that I do not know why accused Dev used to harass my daughter and prosecutrix (name withheld) told me that Dev used to tease her when she used to go to and return from the School and Dev asked her for friendship and relations but prosecutrix (name withheld) refused saying that after 23 years she would be a major and then they can get married. She further deposed as that prosecutrix (name withheld) told her that he would marry her when she become major but now when she had become major and the accused refused to marry her. This piece of evidence clearly demolishes the case of the prosecution and also proved that PW1 and PW4 were deposing falsely. She has also denied the suggestion of the prosecution that accused had physical relationship with her daughter or in order to save her honor she 116 of 152 117 FIR No. 171/10 PS - Shahbad Dairy attempted to kill herself. She also admitted in the crossexamination that in the Safdarjung Hospital she was attending her and the Police had come there. Therefore, it is clear that in the Hospital the prosecutrix never talked about rape to anybody including Police. Therefore, the prosecutrix and her father deposed falsely in this regard. Learned Counsel further submitted that the Badli Railway Line is at distance of 1 km from the house of prosecutrix and if she had to commit suicide then instead of 1 km away railway line she would not have gone to such a far place. She deposed that she took auto rickshaw and reached the railway line and when she noticed the noise of the train she jumped before the moving train from a distance of 45 feet but in the examinationinchief she stated that she lied thee in front of the train. The above testimony clearly proves that she is deposing falsely and changing her stand. Learned Counsel further submitted that PW1 Prosecutrix further deposed in her crossexamination that I do not remember when for the first time after railway accident I had complained against the accused and she further stated that my parents were with me at the Safdarjung Hospital and I had told the Doctor at Safdarjung Hospital about the rape incident on the same day when I Was shifted there. This fact is also a 117 of 152 118 FIR No. 171/10 PS - Shahbad Dairy false story concocted by her. Her mother states that she never disclosed about the incident of rape. Her father states after two days in Hospital she told to her mother and then her mother told to me. No Doctors of Safdarjung Hospital have stated that she stated the incident of rape on 18/10/2010 when she was shifted there. As per the Safdarjung Hospital record she disclosed to the Doctor on 11/09/2010 about the alleged rape i.e. about two months after the accident. Therefore, on this aspect also the prosecutrix and her father have been proved to be false witnesses. Learned Counsel submitted that PW1 Prosecutrix in her cross examination as stated above, first stated that she sent the complaint on (in) her own handwriting but when confronted with the typed complaint she said that she does not know that who got it typed and does not remember the date when she signed the same but then admitted that it was brought by her father. On this account also she lost her trustworthiness. Learned Counsel further submitted that the prosecutrix gave the history to PW5 Dr. Poonam, Safdarjung Hospital that she was having last intercourse in January, March, 2010 and history of sexual intercourse is last 3 years but in her Court deposition she has stated that she was having physical relationship for the last 4 years and in her cross 118 of 152 119 FIR No. 171/10 PS - Shahbad Dairy examination she stated that she lastly gone to the shop of the accused in June, 2010 and before that in March, 2010. This fact is again contradictory and further proves that the prosecutrix is deposing falsely.
I have carefully perused and analysed the evidence on record.
The testimony of PW1 - prosecutrix has been reproduced, discussed and analysed hereinbefore. At the cost of repetition, the testimony of PW1 - prosecutrix has been found to be clear, cogent and convincing and inspiring confidence. There is nothing in her statement to suggest that she had any animus against the accused to falsely implicate him in the case.
At the cost of repetition, it is pertinent to reproduce the relevant part of examinationinchief of PW1 - prosecutrix which reads as under : "I know accused Vipin Nahar @ Dev present in the Court (correctly identified). Accused told me that he used to reside at Vijay Nagar Colony, Bawana. Accused used to run his mobile shop near my house since 2004 to 2005. the shop of accused falls on the way to my School and I used to pass from there. I was studying in sixth or seventh 119 of 152 120 FIR No. 171/10 PS - Shahbad Dairy standard in a Government School, Shahbad Dairy. Since four years prior to the incident, accused used to trouble me when I used to cross from outside his shop. He used to stop me and used to claim that he was in love with me and he wanted to marry me. He pressurized me to have physical relations on the pretext that he will marry me and he forced me and had physical relations with me. Accused had called me to his shop where is is having one cabin behind the shop. I went there. I was unaware about the intentions of accused. For some time, accused had sweet talks with me and then he offered me water. I had that water and thereafter, I lost my consciousness and slept. Then he had galat kaam (he made relations as husband and wife) with me. This happened four years from today. I got upset with this and I also got mentally disturbed and could not concentrate on my studies. Accused also threatened me that if I will say anything about the conduct of accused to anyone then, he will defame me. Some days prior to the lodging of my report, accused also threatened me by saying that he had taken my nude photographs when I was unconscious and he would defame me. He also threatened me that would not let me live in society. He insisted me that I should obey him and do as peer his wishes. He used to say that "shaadi vaadi me kya rakha hai, zindagi ke maze lo". Accused used to say that when I will become major, he will marry me but now when I became major, he started playing with me and used to ignore me on the issue of marriage. Accused used to give me phone call and used to call me. He used to blackmail me and had physical relations with me many times. I was fed up with the behaviour of accused and then on 17/07/2010, I had rang up number 100. I thought that Police would understand my problem and would save me from the cruelty of accused. Police had come in front of shop of accused and villagers had also collected. I shouted for the help from Police and also told them about the conduct of accused. In 120 of 152 121 FIR No. 171/10 PS - Shahbad Dairy between, my parents had also come there. Police had done nothing on my such complaint. In order to save our respect, my father had then sent me to my house with my mother. I could not bear this and became upset and thought that Police had not paid any heed to any of my allegations and had done nothing.
On 17/07/2010 in the evening, I went to the Railway Line and lied there in front of train and in that incident, both my legs got severe injuries. On of my leg was amputated and another leg was severely damaged and nowadays, I am walking with the help of clutches."
During her crossexamination recorded on 18/08/2011, PW1
- prosecutrix has specifically deposed which is reproduced and reads as under : "I had stated to the Police in my complaint Ex. PW1/A that accused had pressurized and forced me to make physical relations with him. (confronted with statement Ex. PW1/A where it is recorded that physical relation was made on false promise) I do not remember if I had mentioned in my complaint Ex. PW1/A about the fact that accused had called me to his shop where he was having one cabin behind the shop and I went there and I was unaware about his intentions and for some time, accused had sweet talks with me and then offered me water and after having water, I lost my consciousness and slept and then accused had raped me and this happened four years back from today. (confronted with statement Ex. PW1/A where it is not recorded) Accused started threatening me regarding the objectionable photos of mine since June, 2010. I had mentioned in my complaint Ex. PW1/A about the fact that some days prior to the lodging of my report, accused 121 of 152 122 FIR No. 171/10 PS - Shahbad Dairy started threatening me with my objectionable photographs. Vol. I had only told to the Police that accused started threatening me. I had mentioned in my complaint that after I became major, accused started playing with me and used to ignore me on the issue of marriage and accused used to call me and used to blackmail me and had physical relations with me many times. (confronted with statement Ex. PW1/A where it is not recorded in these words. However, it is recorded that now I became major and I told accused that I wanted him to meet my parents and on this, accused became angry and in between, on the promise of marriage, he did wrong act with me). I do not remember if I had mentioned in my complaint Ex. PW1/A that I was fed up with the behaviour of accused and them on 17/07/2010, I rang up PCR and thought that Police would understand my problem and would save me from the cruelty of accused and then Police had reached in front of the shop of accused and villagers had also collected and I shouted for the help from Police and also told them about the conduct of accused and in between, my parents had also come there but Police had done nothing on my such complaint and in order to save our respect, I was sent to my house with my mother by my father and I could not bear this and became upset and thought that Police had not paid any heed to any of my relations and had done nothing (confronted with statement Ex. PW1/A where it is not so recorded). I had mentioned in my complaint Ex. PW1/A that on the evening of 17/07/2010, I went to railway line and lied there in front of train and railway Police had also come to Bhagwan Mahaveer Hospital and they had obtained my signatures on blank papers and my parents were also there in the Hospital and signatures of my father was also obtained by railway Police on blank papers. (confronted with statement Ex. PW1/A where it is not so recorded in these words, 122 of 152 123 FIR No. 171/10 PS - Shahbad Dairy however, it is written that I left my house in order to cut myself on the railway line and other remaining facts are not recorded) I had not mentioned in my complaint Ex. PW1/A that when I was in Safdarjung Hospital, my father had visited PS many times but no complaint was lodged (confronted with statement Ex. PW1/A where it is not so recorded). I do not remember if I had mentioned in my complaint that during the last four years, accused had made forcible physical relations with me and every time, he used to force me and since I was minor and was unable to understand the consequences of the conduct of accused (confronted with statement Ex. PW1/A where words "forcible physical relations" are not mentioned)."
On analysing the entire testimony of PW1 - prosecutrix, it transpires that she has described the scenario implicating the accused Vipin Nahar @ Dev to be the author of the crime, of the committal of the sexual assault upon her. The accused has failed to elicit any material or relevant discrepancies or inconsistencies despite her searching cross examination. She has withstood the rigors of crossexamination without being shaken. In fact, the so called improvements are the 'clarifications' or 'elaboration' of the facts in response to the questions put to her. Her version on the core spectrum of crime has remained intact.
In case A. Shankar Vs. State of Karnataka, 2011 VII AD 123 of 152 124 FIR No. 171/10 PS - Shahbad Dairy (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.....".
Even the honest and truthful witness may differ in some details unrelated to the main incident because power of observation, retention and reproduction differs with individuals. Discrepancies which do not go to the root of the matter and shake the basic version of the witnesses, therefore cannot be annexed with undue importance. (Ref. 'Mahmood Vs. State', 1991 RLR 287).
The Hon'ble Supreme Court of India in case 'Leela Ram Vs. State of Haryana', (1999) 9 SCC 525 has observed that there are bound to be some discrepancies in the narration of certain witnesses 124 of 152 125 FIR No. 171/10 PS - Shahbad Dairy when they speak out details. The corroboration of evidence with mathematical niceties cannot be expected in criminal cases. Minor embellishments, there may be, but variations by reasons therefore should not render the evidence of eye witnesses unbelievable.
The Hon'ble Supreme Court in 'Bharwada Bhoginbhai Hirjibhai Vs. State of Gujrat' (1983) 3 SCC 217, has held much importance cannot be attached to minor discrepancies for the reasons :
1) By and large a witness cannot be expected to possess a photographic memory and to recall the details of an incident. It is not as if a video tape is replayed on mental screen; 2) Ordinarily it so happens that a witness is overtaken by events. The witness could not have anticipated the occurrence which so often has an element of surprise. The mental faculties therefore cannot be expected to be attuned to absorb the details.
3) The powers of observation differ from person to person, what one may notice, another may not. An object or movement might emboss its image on one person's mind whereas it might go unnoticed on the part of another.
It is a settled principle of law that every improvement or variation cannot be treated as an attempt to falsely implicate the accused by the witness. The approach of the Court has to be reasonable and 125 of 152 126 FIR No. 171/10 PS - Shahbad Dairy 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 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 126 of 152 127 FIR No. 171/10 PS - Shahbad Dairy 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].
As regards the plea that she (PW1 - prosecutrix) did not complain the acts of the accused to any person in the market or the passer by is concerned, she has explained the reasons for the same that accused had threatened her and that she was under the threat that accused would make public her photographs.
The relevant part of the crossexamination of PW1 - prosecutrix recorded on 20/05/2011 is reproduced and reads as under : "It is correct that the street in front of the shop of accused is main road leading to our village. (Vol. There are other main road also leading to out village). I did not tell my parents when accused had allegedly troubled me for the first time. (Vol. He had threatened me). Accused started threatening me after he had committed galat kaam with me and he had started pressurizing, threatening and blackmailing me some days prior to lodging of my report. He did not threaten me before that. He started blackmailing me in June, 2010 and I lodged report in July, 2010. I did not tell during the aforesaid period about the fact of such blackmailing to my parents. (Vol. I was under
the threat that accused would make public my photographs).
I had gone inside the shop of accused. (Vol. I had not gone
127 of 152 128 FIR No. 171/10 PS - Shahbad Dairy there voluntarily). I had visited his shop for the first time four years back when I Was called by him. I had merely gone to meet him. Accused was troubling me even before my said visit of four years back. I used to leave School when School used to be over and did not use to leave before or after School hours. Normally, I used to return alone and on some occasion other students also used to be with me. Most of the time at the time of return, he used to be there on the date of his shop. Q. How did he use to trouble you at the time of return? Ans. He used to come closer and used to pass comments and also used to throw some pieces of papers from first floor and also used to propose me.
I used to get annoyed and irritated by such act of accused. I did not make any complaints regarding the acts of accused to any person of that market or any passerby. (Vol. He used to act in such a manner so that no one else was able to notice). Lastly, I had gone to his shop in June, 2010. Before that I had gone to his shop in March, 2010."
As regards the plea regarding the offering of the water mixed with something to the prosecutrix by the accused whereby she used to become unconscious and thereafter, accused used to make physical relation with her, is concerned, PW1 - prosecutrix in her cross examination recorded on 20/05/2011 has categorically deposed which is reproduced and reads as under : 128 of 152 129 FIR No. 171/10 PS - Shahbad Dairy "Q. When did he offer you water as claimed by you in your examinationinchief?
Ans. He used to offer me water whenever I used to go to his shop and he used to mix something in the water and whenever I used to become unconscious, he used to make physical relations with me. (Vol. For the first, he had offered me water and then raped me and later on he used to offer me some edible and then used to rape me.) I do not remember as to what exactly he used to offer me to eat. (Vol. There was a hotel nearby and he used to bring different things to eat). After 45 minutes of taking water, I used to get giddiness and thereafter used to start feeling sleepy slowlyslowly. There was a cabin inside the shop of accused measuring about 5 feet X 6 feet. (Witness has given approximation by stretching her hands). Besides accused there used to three more persons who used to work in his shop and one of them was his friend. Later on, accused had also employed one lady after the incident of rape. For the first time when accused offered me water, it was 2:30 - 3:00 p.m. That day first I had returned to my house from School and thereafter I had gone to the shop of accused I did not tell my parents that I was going to his shop. He indulged in conversation for initial 1520 minutes and thereafter he offered me water and thereafter I started feeling dizziness after 45 minutes. I cannot tell as to when I regained consciousness. I returned to my house by 5:00 or 5:30 p.m. After regaining consciousness, I rebuked accused as to what he had done. This was the first time that anyone had any physical relation with me. I was wearing underwear at that time and when I regained my consciousness, I noticed that there was some white color sticky material but I could notice any blood. At the time of such incident, I was in sixth or seventh class. My parents did not ask as to 129 of 152 130 FIR No. 171/10 PS - Shahbad Dairy where was I during that period. (Vol. I used to go to the house of my tai). My tai is living in same village near to our house. My parents had come to know about my visits at the shop of accused for the first time when I lodged the Police report on 17/07/2010. On the same day, when Police had come to the shop of accused, my parents also came there and had come to know about my visits to the shop of accused. I did not call my parents to the shop of accused at that time. Someone might have informed my parents about my quarrel at the shop and about the presence of Police. At that time, I came from my house. (Vol. Accused was calling me again and again and was threatening me to blackmail through photos). On 17/07/2010 when I came from my house to the shop of accused, only my mother was there at home. My father was at his shop at Sector - 16, Rohini and brother was on his job. I had not narrated about the all acts of accused to my parents or to public gathered at the shop at that time. (Vol. I had just told them that accused used to trouble me and my parents took me to my home as they did not want to reputation to be at stake). After my return to home, I did not narrate any fact to my mother, father, sister or brother. (Vol. I was completely upset at that time). I told my parents about fact that accused used to trouble me given at the shop of accused only. I remained at the shop of accused for about 3035 minutes on 17/07/2010. It is correct that I had not stated to my parents or to any other about my rape was being done by accused. (Vol. I had stated about rape only before Police for the first time at the time of lodging of Police report)."
At the cost of repetition, as discussed hereinbefore, the testimony of PW1 - prosecutrix has also been found to be corroborated 130 of 152 131 FIR No. 171/10 PS - Shahbad Dairy by the testimonies of PW4 - Sh. Daya Kishan @ Lal, father of the prosecutrix and PW10 - Laxmi Devi, mother of the prosecutrix to whom PW1 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 and on careful perusal and analysis of the testimonies of PW4 - Sh. Daya Kishan @ Lal and PW10 - Laxmi Devi, the same, have been found to be natural, clear, cogent, convincing and having a ring of truth. They have deposed the facts as to what they perceived, observed and experienced. There is nothing in their statements to suggest that they had any animus against the accused to falsely implicate him in the case.
As regards the plea that the Badli Railway Line is at distance of 1 km from the house of prosecutrix and if she had to commit suicide then instead of 1 km away railway line she would not have gone to such a far place, is concerned, information regarding the same must have been obtained from PW1 prosecutrix during her incisive and lengthy crossexamination. She was the only competent witness who would have been fully capable of explaining correctly the factual situation. For failure to do so, accused is to blame himself and none else.
131 of 152 132 FIR No. 171/10 PS - Shahbad Dairy 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 the plea that prosecutrix had told the Doctor at Safdarjung Hospital about the rape incident on the same day when she was shifted there is a false story, is concerned, it is to be noticed that in this regard PW1 - prosecutrix in her crossexamination recorded on 18/08/2011 has specifically deposed which is reproduced and reads as under : "I was taken to Bhagwan Mahaveer Hospital after accident by the Railway Police. I do not remember when for the first time, after railway incident, I had complained against accused. Vol. My father had visited Police many times but Police did not register any complaint. Next day of the railway incident, I was shifted to Safdarjung Hospital from Bhagwan Mahaveer Hospital. My parents were with me at that time and we were also accompanied by the Hospital staff who had shifted me to Safdarjung Hospital. I had told to the Doctor at Safdarjung Hospital about the incident of rape on the same day when I was shifted there. After that day, Doctor had not asked from me about that incident of rape nor I have told anything to the Doctor. In Bhagwan Mahaveer Hospital, I was not in the condition to say anything so I did not tell 132 of 152 133 FIR No. 171/10 PS - Shahbad Dairy anything about the rape to the Doctor in that Hospital."
The testimony of PW1 - prosecutrix is also found to be corroborated by her MLC Ex. PW5/A prepared at the Safdarjung Hospital and in the said MLC, from the alleged history, it is clearly indicated that prosecutrix has categorically named the accused, regarding her affair with known boy/accused Dev for last four years, of committal of sexual intercourse with her for last three years, of committal of last intercourse in January/March, 2010, and regarding giving of some drug by accused to her after which she fall asleep and of the committal of sexual intercourse with her without her consent.
The alleged history given by PW1 - prosecutrix to Doctor reflected in her MLC Ex. PW5/A prepared at Safdarjung Hospital is reproduced and reads as under : "According to patient, alleged h/o affair with known boy (Dev) for last four years, h/o sexual intercourse for last three years h/o last intercourse in January, March, 2010 h/o some drug given by accused to the victim after which patient fall asleep and accused had intercourse with victim without her consent".
133 of 152 134 FIR No. 171/10 PS - Shahbad Dairy Further, at the cost of repetition, PW5 - Dr. Poonam, Safdarjung Hospital, New Delhi working in the Gynae Department has deposed that on 11/09/2010, she was working as Sr. Resident in Safdarjung Hospital, New Delhi. On that day she had examined prosecutrix (name withheld) D/o Shri Daya Kishan, Age 18 years for rape. She came with the alleged history of affair with a known boy (Dev) for last four years with history of sexual intercourse for last three years. She was having history of last intercourse in January, March, 2010. On examination patient was found conscious, cooperative and there was no external signs of injury. On gynae examination labia majora was found normal, no bruises, no external signs of injury and hymen was not intact. Left thigh of the patient was amputated and dressing was present over right thigh and leg. She (PW5) had advised HIV and HBS AG Tests and urine pregnancy test was also done which came out to be negative. She (PW5) has seen attested photocopy of OPD Paper bearing No. GRR27088. The same is now Ex. PW5/A, bearing her signatures at point 'A'. This document was filled be her and bear her signatures and stamp at point 'A'.
134 of 152 135 FIR No. 171/10 PS - Shahbad Dairy Despite grant of opportunity, PW5 - Dr. Poonam was not crossexamined on behalf of the accused.
Nor PW1 - prosecutrix was crossexamined on behalf of accused regarding her alleged history given by her as reflected in the MLC Ex. PW5/A. At the cost of repetition, it is settled law that if there is no crossexamination of a prosecution witness in respect of a statement of fact, it will only show the admission of that fact (Ref.: Wahid Ahmed and Ors. Vs. State (NCT of Delhi) 2011 VII AD (DELHI) 276).
In the circumstances, there is no substance in the plea so raised by the Learned Counsel for the accused.
25. Learned Counsel for the accused submitted that the testimonies of PW4 - Daya Kishan and PW10 - Laxmi, parents of the prosecutrix contain material contradictions therefore cannot be read against the accused. Learned Counsel for accused further submitted that PW4 Daya Kishan deposed falsely to the fact that his statement was not recorded by PW7 - ASI Suresh Chand whereas PW7 proved the same.
135 of 152 136 FIR No. 171/10 PS - Shahbad Dairy He (PW4 Daya Kishan) further deposed falsely that the prosecutrix after her shifting to Safdarjung Hospital disclosed after two days to her mother PW10 - Laxmi about the physical relationship made by accused and then her wife disclosed these facts to him but PW10 did not state to and denied of having rape committed by the accused upon prosecutrix at any point of time and prosecutrix stated that she disclosed for the first time to the Doctors of Safdarjung Hospital on the first day of her admission and she also disclosed and contradicted herself when she stated that for the first time she disclosed the offence of rape when she made the complaining statement to the Police. Therefore, PW4 deposed falsely in this regard alongwith the prosecutrix who contradicted each other. Learned Counsel submitted that PW4 further deposed falsely when he deposed that prosecutrix had given her written complaint in the presence of his wife when he was not present there in the Hospital but the prosecutrix contradicted him when she deposed that PW4 brought the typed statement and she signed the same and in the FIR it is stated that the complaining statement was received through Daak. Therefore, on this point also this witness proved to be a false witness. This witness had also improved his statement when he stated that he has not disclosed 136 of 152 137 FIR No. 171/10 PS - Shahbad Dairy to the Police that it was an accident for this nobody can be blamed. He further deposed falsely when he stated that Police recorded the statement of prosecutrix on 20/08/2010 and the same was signed by her mother. He further stated that Police did not record the statement of her daughter prior to 20/08/2010, which fact is a false fact as contradicted by PW7. Therefore this witness also cannot be believed because of above stated false and contradictory and improved deposition. Learned Counsel further submitted that PW4 Daya Kishan in his complaint Ex. PW4/A stated that her daughter disclosed to the Police of PCR all the facts but no such fact was recorded by PCR or local Police even PW4 in his Court deposition never stated such facts rather stated that he came to know about the rape when prosecutrix told her mother two days after admission in Safdarjung Hospital whereas prosecutrix in her examinationinchief stated that she told the Police on 17/07/2010 about the conduct of the accused but in the crossexamination she stated that she never disclosed the fact of rape to anyone including brothers, sisters, villagers and for the first time disclosed the fact of rape at the time of lodging the Police report. Therefore, from this piece of evidence also the falsehood of the witnesses and prosecution case has been exposed.
137 of 152 138 FIR No. 171/10 PS - Shahbad Dairy Learned Counsel further submitted that even PW6 - HC Darvesh stated in his examinationinchief that on 17/07/2010 when he reached the village Shahbad, he was told by the father of prosecutrix that it was a minor altercation and he had sent to her house with her mother therefore no action was initiated. This testimony also went unchallenged by the prosecution and now is binding on the prosecution and this testimony is again contradicting PW4. Learned Counsel further submitted that PW10 Smt. Laxmi Devi, mother of the prosecutrix has completely denied the fact that she was ever told by anybody that the accused raped prosecutrix at any point of time. And she further denied the suggestion of the prosecution that accused made physical relationship with her daughter by making her to eat or drink any intoxicating substance and further denied that the accused had raped her daughter on any pretext. In her crossexamination she admitted that when prosecutrix remained admitted in Safdarjung Hospital she was attending her. She further admitted that after 12 days of the accident she spoke to prosecutrix but she never stated in her Court deposition that prosecutrix ever told her that she was raped by the accused.
138 of 152 139 FIR No. 171/10 PS - Shahbad Dairy I have carefully perused and analysed the evidence on record.
The testimonies of PW1 - prosecutrix, PW4 - Daya Kishan, her father and PW10 - Laxmi, her mother have been reproduced, discussed and analysed hereinbefore. At the cost of repetition, the testimonies of the said PWs have been found to be natural, clear, cogent, convincing and inspiring confidence. PW4 - Daya Kishan and PW10 - Laxmi have deposed regarding the facts relating to the crime, which were disclosed to them, shortly after the incident, at the first available opportunity by their daughter PW1 - prosecutrix and have deposed regarding the facts which they observed, perceived and experienced. There is nothing in their statements to suggest that they had any animus against the accused to falsely implicate him in the case.
The said contradictions regarding which the plea has been raised do not reflect upon the substantive evidence and the probative value of the statement of PW1 - prosecutrix made on material and relevant aspects. Nor do they vitiate or negate the case of the prosecution which is otherwise proved on record by clear, cogent and 139 of 152 140 FIR No. 171/10 PS - Shahbad Dairy convincing evidence. These are merely the inconsistencies on the fringe without materially affecting the credibility of the evidence. The version of PW1 - prosecutrix on the core spectrum of the crime has remained intact. Moreover, a witness cannot be expected to possess a photographic memory and to recall the details of an incident. It is not as if a video tape is replayed on the mental screen. The corroboration of evidence with mathematical niceties cannot be expected in criminal cases and there are bound to be some discrepancies in the narration of certain witnesses when they speak out details.
At the cost of repetition, 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 140 of 152 141 FIR No. 171/10 PS - Shahbad Dairy or contradictions.....".
At the cost of repetition, 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).
At the cost of repetition, the Hon'ble Supreme Court of India in case 'Leela Ram Vs. State of Haryana', (1999) 9 SCC 525 has observed that there are bound to be some discrepancies in the narration of certain witnesses when they speak out details. The corroboration of evidence with mathematical niceties cannot be expected in criminal cases. Minor embellishments, there may be, but variations by reasons therefore should not render the evidence of eye witnesses unbelievable.
At the cost of repetition, the Hon'ble Supreme Court in 'Bharwada Bhoginbhai Hirjibhai Vs. State of Gujrat' (1983) 3 SCC 141 of 152 142 FIR No. 171/10 PS - Shahbad Dairy 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 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.
At the cost of repetition, 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 142 of 152 143 FIR No. 171/10 PS - Shahbad Dairy 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 narrating a particular incident, there may occur minor discrepancies. Such discrepancies may even in Law render credential to the depositions. The improvements or variations must essentially relate to the material particulars of the prosecution case. The alleged improvements and variations must be shown with respect to material particulars of the case and the occurrence. Every such improvement, not directly related to the occurrence is not a ground to doubt the testimony of a witness. The credibility of a definite circumstance of the prosecution case cannot be weakened with reference to such minor or insignificant improvements. Reference in this regard can be made to the judgments of this Court in Kathi Bharat Vajsur and Another Vs. State of Gujrat [(2010) 5 SCC 724], Narayan Chetanram Chaudhary and Another Vs. State of Maharashtra [(2000) 8 SCC 457], D. P. Chadha Vs. Triyugi Narain Mishra and Others [(2001) 2 SCC 205] and Sukhchain Singh Vs. State of Haryana and others [(2002) 5 SCC 100].
In the circumstances, there is no substance in the plea so 143 of 152 144 FIR No. 171/10 PS - Shahbad Dairy raised by the Learned Counsel for the accused.
26. Learned Counsel for accused submitted that the investigation has been unfair in this case and the accused is wrongly chargesheeted by the Police. The Police on the one hand admitting the fact that prosecutrix and her father initially did not name the accused in any manner whatsoever but still relied upon the subsequent belated typed statement. No investigation was done as to who got typed the statement Ex. PW1/A and from where it got typed, more particularly when it was in the knowledge of the Police that at the time of filing of the complaining statement the prosecutrix was admitted in Safdarjung Hospital. The Police failed to investigate or connect the accused with the commission of crime and did not investigate the matter from the employees of the accused or from villagers or from other family members of the accused as the same were exonerating the accused. The Police only on the advice of prosecution branch registered this case and wrongly arrested the accused knowing fully well that he was innocent and the subsequent belated statements of the prosecutrix are contradictory from earlier version. No nude photograph of any kind 144 of 152 145 FIR No. 171/10 PS - Shahbad Dairy were recovered from the possession of the accused and no evidence in favour of the accused which contradicting the prosecutrix and her family were collected deliberately.
I have carefully perused and analysed the evidence on record.
As regards the plea that no investigation was done as to who got typed the statement Ex. PW1/A and from where it got typed, is concerned, it is not made clear by the Learned Counsel for the accused as to what benefit he intends to reap by raising the said plea, especially in view of the specific testimony of PW16 - ASI Ashok Kumar, IO who in his crossexamination recorded on 16/04/2013 has categorically deposed that " "I had taken over the investigation of this case at around 6:00 p.m. on 25/08/2010. The initial call of the present case was marked to HC Durvesh. The Reader of the SHO handed over to me the file of the case which contained only the typed statement of the prosecutrix i.e. PW1/A. The SHO at the time of the discussion has not disclosed anything regarding the previous enquiry/proceedings in the present case. The SHO only handed over the written complaint of the prosecutrix and directed to lodge the FIR and investigate the matter. On 25/08/2010 I had taken brief from HC Durvesh also regarding the previous enquiry 145 of 152 146 FIR No. 171/10 PS - Shahbad Dairy conducted by him. I had filed the chargesheet in this case.
I had not investigated the fact as to who got typed the statement Ex. PW1/A and from where it was got typed. It has not come during the investigation that the prosecutrix herself had visited some place in order to type the complainant statement....."
On careful perusal and analysis of the testimony of PW16 - ASI Ashok Kumar, it is found to be clear, cogent and a graphic details of the steps which he took during the course of investigation. Inspite of his incisive crossexamination, nothing material has come out so as to impeach his creditworthiness. There is nothing in his statement to suggest that he had any animus against the accused to falsely implicate him in the case.
As far as the plea that Police did not investigate the matter from the employees of the accused or from villagers or from other family members of the accused, as the same were exonerating the accused, is concerned, the prosecution can be expected to examine only those who have witnessed the events and not those who have not seen it though, the neighbourhood may be replete with other residents.
146 of 152 147 FIR No. 171/10 PS - Shahbad Dairy In case 'State of Rajasthan Vs. Teja Ram & Ors.', AIR 1999 SC 1776, the Hon'ble Supreme Court has held that : "The overinsistence on witnesses having no relation with the victims often results in criminal justice going awry. When any incident happens in a dwelling house, the most natural witnesses would be the inmates of that house. It is unpragmatic to ignore such natural witnesses and insist on outsiders who would not have even seen anything. If the Court has discerned from the evidence or even from the investigation records that some other independent person has witnessed any event connecting the incident in question, then there is a justification for making adverse comments against nonexamination of such a person as a prosecution witness. Otherwise, merely on surmises the Court should not castigate the prosecution for not examining other persons of the locality as prosecution witnesses. The prosecution can be expected to examine only those who have witnessed the events and not those who have not seen it though the neighbourhood may be replete with other residents also."
The mere fact of nonjoining a public witness, will not ipso facto make the evidence of the Police witnesses suspect, unreliable or untrustworthy. (Ref. 'Abdul Mura Salim Vs. State' 2005 (8) JCC 1776).
Nonjoining of the public witness does not falsify the case 147 of 152 148 FIR No. 171/10 PS - Shahbad Dairy of prosecution which is otherwise proved on record by clear, cogent and convincing evidence.
It is a matter of common experience that public persons do no come forward to assist the Police in the investigation.
In case Nirmal Singh & Ors. Vs. State 2011 III AD (DELHI) 699, the Hon'ble Delhi High Court has held that : "It is a known fact that the persons of the public are reluctant to join the Police in the investigation of any case as they do not want to undertake unpleasant task of attending the Police Station and the Court for giving evidence."
As regards the plea that no nude photograph was recovered from the possession of the accused, is concerned, nonrecovery of such photographs, does not falsify the case of the prosecution which is otherwise proved on record by clear, cogent and convincing evidence. Moreover, the factum regarding the whereabouts of the nude photograph must be within the especial knowledge of the accused and the burden of proving the same was upon him. Section 106 of the Indian Evidence Act, 1872 provides for burden of proving fact especially within 148 of 152 149 FIR No. 171/10 PS - Shahbad Dairy knowledge.
It reads as under : "106. Burden of proving fact especially within knowledge. When any fact is especially within the knowledge of any person, the burden of proving that fact is upon him."
In the circumstances, there is no substance in the plea so raised by the Learned Counsel for the accused.
27. Learned Counsel for the accused referred to the cases and are reported as 'Sharad Birdhi Chand Sarda Vs. State of Maharashtra' AIR 1991 SC 917, 'Jaharlal Das. Vs. State of Orissa' 1991 AIR 1388, 'Balvinder Singh Vs. State of Punjab' AIR 1996 SC 607, 'Tanviben Pankaj Divetia Vs. State of Gujrat' 1997 Crl.L.J. 2535, 'Shakila Abdul Gafar Khan Vs. Vasant Raghunath Dhoble' (2003) 7 SCC 749, 'Zahira Habibullah Sheikh Vs. State of Gujrat' (2006) 3 SCC 374, 'Raju Vs. State of Madhya Pardesh' (2008) 15 SCC 133, 'Abbas Ahmed Choudhary Vs. State of Assam' (2010) 12 SCC 115, 'Narender Kumar Vs. State of NCT of Delhi' (2012) SC 2281, 'Tukaram & Anr. Vs. The State of Maharashtra' (AIR 1979 SC 185), 'Uday Vs. State of Karnataka' AIR 2003 SC 1639, 149 of 152 150 FIR No. 171/10 PS - Shahbad Dairy 'Rai Sandeep @ Deepu Vs. State of NCT of Delhi' 2012 (131) DRJ 3 (SC), 'Radhu Vs. State of Madhya Pradesh' (2007) Cr.L.J. 4704 and 'Mumtaz Vs. State (NCT of Delhi)' ILR (2013) IV DELHI 2706.
I have carefully gone through the same. With due respect there is no dispute as to what has been held therein but the same are wholly distinguishable in view of the peculiar facts and nature of evidence adduced in the instant case. In case titled Sunil Kumar Vs. State 181 (2011) DLT 528(DB) it was held that "No case can strictly be a precedent in a criminal matter for the reason no two criminal trials would unfold the same story and the same evidence. Thus, a decision cited pertaining to the destination reached at a particular criminal voyage has to be carefully applied, on a principle of law, in a subsequent voyage".
28. In view of above and in the circumstances, prosecution has thus categorically proved beyond shadows of all reasonable doubts that during the previous period of four years till March, 2010, accused Vipin Nahar @ Dev induced PW1 prosecutrix (name withheld), aged around 150 of 152 151 FIR No. 171/10 PS - Shahbad Dairy 13 years (to be exact 13 years 02 months and 04 days) to have sexual intercourse with him on the false pretext that he would marry her (PW1 prosecutrix) and thereby he obtained her consent for such sexual intercourse and had sexual intercourse with her despite knowing it very well that he will not marry with PW1 prosecutrix whereby the promise of marriage was merely a hoax and being conscious of the fact that, had he not promised to marry the victim/PW1 prosecutrix, she would have never allowed him the physical intimacy with her and further the consent of PW1 prosecutrix for cohabitation/sexual intercourse was obtained by the accused Vipin Nahar @ Dev under a misconception of fact by deceitfully causing her to believe that he will marry PW1 prosecutrix while the accused committing the sexual intercourse upon PW1 prosecutrix knew that the consent was given by PW1 prosecutrix in consequence of such misconception.
I, accordingly, hold accused Vipin Nahar @ Dev guilty for the offence punishable u/s 376 IPC and convict him thereunder.
29. In view of above discussion, I am of the considered opinion that as far as the involvement of accused Vipin Nahar @ Dev in the 151 of 152 152 FIR No. 171/10 PS - Shahbad Dairy commission of the offence u/s 376 IPC is concerned, the same is sufficiently established by the cogent and reliable evidence and in the ultimate analysis, the prosecution has been able to bring the guilt home to the accused Vipin Nahar @ Dev beyond shadows of reasonable doubt and there is no room for hypothesis, consistent with that of innocence of accused Vipin Nahar @ Dev. I, therefore, hold accused Vipin Nahar @ Dev guilty for the offence punishable u/s 376 IPC and convict him thereunder.
Announced in the open Court (MAHESH CHANDER GUPTA) on 26th Day of August, 2014 Additional Sessions Judge Special Fast Track Court (N/W District), Rohini, Delhi 152 of 152