Delhi District Court
State vs Accused on 20 February, 2013
IN THE COURT OF DR. T. R. NAVAL, ADDITIONAL SESSIONS
JUDGE, (SPECIAL FAST TRACK COURT) KARKARDOOMA
COURTS, DELHI
Unique Case I.D. No.02402R072282006
SC NO. 06/13 Date of Institution :22.01.2007
FIR No.508/06 Date of Argument :15.02.2013
PS Anand Vihar Date of Order :20.02.2013
U/S 363/376 IPC
State Versus Accused
Rakesh
S/o Sh. Budhu Ram
R/o Vill.- Lakhesar, PS Sikrara,
Distt. Jonpur( U.P.)
JUDGMENT
The facts in brief of the prosecution case are that on 27.09.2006, Smt. ____Y___ mother of the prosecutrix lodged a report at P.S. stating that she used to reside with her family, i.e. her husband, a son aged 10 years and a girl __X___, here in after referred to as the prosecutrix, aged 15 years. She was a student of class 9. She used to go for tuitions at Lehri Colony at 2.00 pm. On 23.9.06 when they returned to their house, their daughter was not found at their house. They tried to search her but could not. However, they came to know that their SC No.6/13 State vs. Rakesh Page 1 of 26 neighbour Rakesh, originally resident of Village Lakeshwar District Jonpur, had enticed their daughter and took her with him. On the basis of her statement, police recorded FIR No. 508/06 at PS Anand vihar u/s 363 IPC. IO visited the place of occurrence and prepared site plan, took photographs and flashed message regarding missing of prosecutrix. The police alongwith Chote Lal arrived at village Lakeshwar, Distt Jonpur, but they could not be traced. Thereafter, they went to village Kunwardah but she could not be traced. When they were returning back and they arrived at New Delhi railway station Chote Lal pointed out girl __X___ and Rakesh on a road towards Ajmeri Gate. They were apprehended. The prosecutrix was handed over to Chote Lal. Accused was arrested. His arrest memo was prepared. Statement of prosecutrix was recorded. She also disclosed that accused had committed sexual intercourse with her against her consent. She was sent to SDN Hospital by W/Ct. Geeta and accused was sent to said hospital by Ct. Sanjay Nagar for medical examination. MLC of prosecutrix as well as accused were prepared. Doctors took some samples of the prosecutrix as well as accused and after sealing the same, those were handed over to respective constables. Samples were initially seized and later on sent to FSL for testing and report. Statement of prosecutrix u/s 164 of the Code of Criminal Procedure, here SC No.6/13 State vs. Rakesh Page 2 of 26 in after referred to as the Code, was got recorded. Police after recording of statements of witnesses and on completion of the investigation, filed a charge sheet against the accused for his trial for the offences punishable u/s 363/376 IPC.
2. Ld. Metropolitan Magistrate after supplying of copies of charge sheet and documents to the accused committed this case to the court of sessions and the case was assigned to Ms. Veena Birbal, Ld. ASJ, Karkardooma Courts, Delhi as his lordship then was.
3. Vide order dated 05.03.2007 the court opined that prima facie case for framing of charge against the accused for the offences punishable u/s 366/376 IPC was made out. Therefore, charge against the accused for his trial for the said offences was framed and read over to him in vernacular language. He pleaded not guilty and claimed trial.
4. The prosecution, in order to prove its case examined __X___ prosecutrix as PW1; Smt. ____Y___ as PW2; Dr. Pankaj Kumar as PW3; Dr. Raj Pal as PW4; HC Anil Kumar as PW5; Ct. Geeta as PW6 and Ct. Sanjay Nagar as PW7.
SC No.6/13 State vs. Rakesh Page 3 of 265. At this stage, accused absented. After completion of process u/s 82/83 of the Code, accused was declared proclaimed offender vide order dated 04-06-09. The file was consigned to Record Room as material evidence u/s 299 of the Code had already been recorded.
6. On 5.7.2011 accused was arrested and a supplementary charge sheet was filed. The prosecution then examined Ct.Jitender Singh as PW8; Sh. _______Z_____ as PW9; Dr. HC Ashok Rana as PW10, Retired ASI Chander Pal PW11; Chote Lal as PW12; Ms. Poonam Chaudhary as PW13; HC Rajbir Singh as PW14; Sh. S.S.Rawat as PW15; Sh. Pawan Kumar as PW16; SI Ravi Parkash as PW17; HC Harpal Singh as PW18; Dr. Kamal Kumar as PW19; Sh. Pradeep Kumar Mishra as PW20, and Dr. R.K.Pal, CMO SDN Hospital as PW-21.
7. Vide order No.20/372-512/F.3.(4)/ASJ/01/2013 dated 04.01.2013, on constitution of Special Fast Track Courts for trial of sexual offences, Hon'ble District & Sessions Judge, transferred this case to this court.
8. After closing of prosecution evidence statement of the accused u/s 313 of the Code was recorded. All the SC No.6/13 State vs. Rakesh Page 4 of 26 material and incriminating evidence was put to him. Accused admitted that the prosecutrix was residing in house No. _______________Z-1_________ Delhi and he was residing in nearby premises as tenant. He also stated that on 23.9.2006 prosecutrix arrived at his factory at Vishwas nagar and took him with her and thereafter they went to village Kunwardah, District Jonpur and that he was arrested and he was taken to SDN hospital by Ct. Sanjay Nagar PW7 and that PW-3 Dr. Sanjay Kumar medically examined him and prepared his MLC ExPW3/B and he opined that he was competent to perform sexual intercourse and that the prosecutrix was also taken to said hospital for her medical examination and that their samples were taken in the hospital and that the prosecutrix identified him and her clothes as Ex. P-1 correctly. He expressed his ignorance about rest of the evidence and pleaded that __X___ wanted to marry him. He did not want to marry her. Mother of prosecutrix went in his village with the proposal of marriage of the prosecutrix with him but after coming to know that he was suffering from skin diseases( white patches), mother of prosecutrix declined to marry the prosecutrix with him. Despite of that the prosecutrix still wanted to marry him.
9. After closing of evidence by the prosecution, I SC No.6/13 State vs. Rakesh Page 5 of 26 have heard arguments addressed by Ld. Additional Public Prosecutor for the State and Ld. Defence Counsel for accused and perused file.
10. It has been argued on behalf of Ld. Defence Counsel that statement of prosecutrix is not reliable and trustworthy and it has not been supported by other witnesses. Testimony of prosecutrix was self contradictory and unreliable. The conviction cannot be based on such a piece of evidence. It would not be just and proper to convict the accused on the basis of single testimony of the prosecutrix. He submitted that accused is entitled for acquittal by getting benefit of doubt.
11. Ld. Defence Counsel further argued that date of birth of the prosecutrix could not be proved by the prosecution beyond any reasonable suspicion and doubt. There are different addresses in the record. Name of mother of prosecutrix has also been mentioned differently. Ld. Defence Counsel further argued that prosecutrix was a consenting party. The different records produced in the court has shown that prosecutrix was above 16 years of age. She was a consenting party. There are contractions in the testimonies of prosecution witnesses. Sh. _____Z2___ went to the native place of accused and brought the SC No.6/13 State vs. Rakesh Page 6 of 26 accused and prosecutrix and accused was falsely implicated in the present case.
12. On the other hand Ld. Additional Public Prosecutor argued that prosecution has proved its case for both the offences against accused beyond reasonable suspicion and shadow of doubt. The conviction can be based on a single testimony and the accused is liable to be held guilty and convicted for the said offences. The documents have proved that prosecutrix was less than 16 years of age. The witnesses have explained that name of mother was ___Y1__ and _____Y____. The prosecutrix was a minor less than 16 years of age and she never consented to have sexual intercourse with her by the accused. The discrepancies in the statements highlighted by Ld. Defence Counsel are of minor nature and can be ignored.
13. In support of her arguments, she relied on a case, State v. Jai Hind, 2012 VI AD (Delhi) 170 wherein it was held by Delhi High Court that:
"32. ***In Rameshwar v. State of Rajasthan, AIR 1952 SC 54 where the Court held:
"The rule, which according to cases has hardened into one of law, is not that corroboration is essential before there can be a conviction, but that the necessity of corroboration, as a matter of prudence, except where the circumstances make it safe to dispense with it, must be present to the mind of the judge... The only rule of law is SC No.6/13 State vs. Rakesh Page 7 of 26 that this rule of prudence must be present to the mind of the judge or the jury as the case may be and be understood and appreciated by him or them. There is no rule of practice that there must, in every case, be corroboration before a conviction can be allowed to stand."*** "38. In State of Punjab v. Gurmit Singh & Ors., AIR 1996 SC 1393, the Supreme Court held that in cases involving sexual offences, harassment, molestation etc. the court is duty bound to deal with such cases with utmost sensitivity. It was held that:
"The courts should examine the broader probabilities of a case and not get swayed by minor contradictions or insignificant discrepancies in the statement of the prosecutrix, which are not of a fatal nature, to throw out an otherwise reliable prosecution case. If evidence of the prosecutrix inspires confidence, it must be relied upon without seeking corroboration of her statement in material particulars. If for some reason the court finds it difficult to place implicit reliance on her testimony, it may look for evidence which may lend assurances to her testimony, short of corroboration required in the case of an accomplice. The testimony of the prosecutrix must be appreciated in the background of the entire case and the trial court must be alive to its responsibility and be sensitive while dealing with cases involving sexual molestations."
Age of the prosecutrix on the date of occurrence
14. PW1 on this aspect deposed that she studied up to 9th standard in a government school. her date of birth was 28.11.1990. In cross examination she stated that she did not remember the year in which she was admitted in the school but she left her studies in 2006 and at that time she was 15 years of age. Her mother PW2 deposed that SC No.6/13 State vs. Rakesh Page 8 of 26 her daughter prosecutrix was studying in 9th standard on the date of occurrence. She also told date of birth of her daughter, the prosecutrix as 28.11.1990. She stated that her daughter was born on 28.11.1990 at about 9:20 p.m. in Safdarjung Hospital. Her birth was got registered in which her name was mentioned as ___Y1___. In cross examination she also stated that she did not remember the year in which her daughter was admitted in the school. Her daughter failed in 8th class twice. She denied the suggestion that her daughter was 17 years of age at the time of incident. PW3 deposed that on 03.10.2006 he was working as CMO in SDN hospital and on that day he examined the prosecutrix aged about 16 years. PW4 stated that he has examined the x-ray plates of prosecutrix for bone age determination. In his opinion the age of patient/prosecutrix was above 14 years and below 16 years. He proved his report as Ex.PW4/A. PW9 father of the prosecutrix on this aspect deposed that age of her daughter, the prosecutrix was about 15 years in the year 2007. In cross examination by Ld. Additional P.P. he stated that date of birth of his daughter was 28.11.1990. In cross examination conducted by Ld. Defence Counsel he denied the suggestion that his daughter prosecutrix was more than 16 years of age on the date of occurrence or that she was a major. He admitted that he did not produce the date SC No.6/13 State vs. Rakesh Page 9 of 26 of birth certificate of Safdarjung Hospital or school certificate of the prosecutrix. PW15 on this aspect deposed that he had brought original birth register containing entries regarding birth of children in Safdarjung Hospital on 28.11.1990. As per the register at Sl. No.1122 Smt. ___Y1__ w/o ____Z___ r/o A-76, Amrit Puri, New Delhi gave birth to a female child at about 9:20 p.m. in Ward-IV, Unit-I, Obstetrics. The copy of the register was proved as Ex.PW15/A. In cross examination he admitted that documents relating to admission and discharge of Smt. __Y1_ w/o ____Z__ had been disposed of as per rules and he proved the certificate to that effect as Ex.PW15/D-1. PW16 on this aspect deposed that he had brought the birth register for the period of 09.11.1990 to 30.11.1990 containing birth entry of female child born from Smt. _Y1_ w/o ___Z__ r/o A-76, Garh, Amrit Puri, New Delhi-65. As per that register, Smt. __Y1_ gave birth to a female child on 28.11.1990 in Safdarjung Hospital. The copy was proved as Ex.PW16/A. In cross examination, he admitted that the register brought by him was maintained by the hospital regarding delivery of child. PW17 on this aspect deposed that on 10.11.2006, he arrived at GTB Hospital and collected bone age x-ray report of Baby ___X___ wherein the age of the prosecutrix was opined between 14 years to 16 years.
SC No.6/13 State vs. Rakesh Page 10 of 2615. On the basis of evidence, discussed here in above, it is held that prosecution has established on record that prosecutrix was born on 28.11.1990. The arguments of Ld. Defence Counsel are not convincing that prosecution could not prove the correct date of birth or that the prosecutrix was above 16 years of age on the date of occurrence. The reason for this decision is that parents are the best witnesses to tell the date of birth of their children. In the present case both the parents have been examined. They specifically told the date of birth of prosecutrix as 28.11.1990. Their testimonies have been supported by medical evidence i.e. bone age record Ex.PW4/A wherein the age has been mentioned as 14-16 years. Their statement have also been supported by PW15 and PW16 who proved relevant entries regarding birth of prosecutrix on 28.11.1990. The date of occurrence is 23.09.2006. On calculation the date of prosecutrix comes to less than 16 years of age. It is, therefore, held that prosecutrix was less than 16 years of age on the date of occurrence.
Kidnapping/abduction and inducing the prosecutrix to compel marriage, etc.
16. In order to prove its case that accused committed an offence of kidnapping, abducting or inducing SC No.6/13 State vs. Rakesh Page 11 of 26 women to compel marriage, etc. punishable u/s 366 IPC, prosecution has to prove firstly that the prosecutrix was abducted by the accused, i.e., accused either by force compelled or by any deceitful means induced the prosecutrix to go from her place and secondly, the prosecutrix was abducted with the intention that the prosecutrix may be compelled or knowing it to be likely that she will be compelled to marry any person against her will or in order that she may be forced to do illicit intercourse. Let us examine the prosecution evidence on record.
17. PW1, prosecutrix on this aspect deposed that on 23.09.2006 she was present in her house. Her parents were away for their work. Accused Rakesh present in the court had been residing near her house as a tenant. He came to her house and told her to accompany him to his village on the pretext that he would take her to different places. He took her to his village Lakeshwar and maintained physical relations with her forcibly number of times against her will and without her consent. She insisted the accused to bring her to her parents. On 2/3.10.2006 accused brought her to Delhi on her insistence. When they reached New Delhi Railway Station, police alongwith her uncle Chhotey Lal met there and SC No.6/13 State vs. Rakesh Page 12 of 26 apprehended accused with her. They were brought to PS. Police made inquiries from her and recorded her statement. In cross examination, she stated that she was taken in a three wheeler scooter from her house at about 2 p.m. She denied the suggestion that she was married with the accused in a temple. There were 4-5 family members of the accused in that house including his mausi, her two daughters and one son. PW2 on this aspect deposed that on 23.09.2006 she and her husband left their house at 9 a.m. and came back at 6:30 p.m. They found that their daughter prosecutrix was missing from their house. They tried to search their daughter in the neighbourhood as well as in the houses of her friends. The accused Rakesh present in the court was residing in their neighbourhood and he was also found missing from his house since that date. He started searching for her daughter. After searching for their daughter for four days, they went to PS on 27.09.2006 and got recorded her statement Ex.PW2/A which was signed by her at point A. After registration of the case, police came to her house and prepared site plan. Her daughter was recovered on 02.10.2006 and she told that she had been taken away by accused Rakesh to the village on the pretext that he would take her here and there. She also told her that accused maintained physical relations with her against her will and without her consent. PW9 SC No.6/13 State vs. Rakesh Page 13 of 26 father of the prosecutrix on this aspect deposed that on 23.09.2006 his daughter prosecutrix was missing from their house. They made inquiry from their relatives but could not find her. On 27.09.2006 they made a complaint to the police. They came to know that accused Rakesh present in the court who was residing in their neighbourhood had taken away her daughter, the prosecutrix. Thereafter, they went to his native village and from there his daughter was recovered. Accused Rakesh was apprehended. On 02.10.2006 he was called by the police at PS and then accused and his daughter was produced before the concerned court. PW10 deposed that on 29.09.2006, he joined the investigation of the present case with IO HC Rajbir, public witness Chote Lal and they reached at the village of accused Rakesh on 30.09.2006. They made inquiry about the accused but he was not found there and then they arrived at village Kunwardah where they came to know that accused had visited the house of his brother. They reached at Jonpur City Railway Station but he could not be found. They also boarded the train for Delhi and arrived at New Delhi Railway Station on 02.10.2006. Public witness Chote Lal pointed out Rakesh and girl prosecutrix. He was arrested and his arrest memo Ex.PW10/A was prepared. After conducting of his search his personal search memo Ex.PW10/B was also prepared. PW SC No.6/13 State vs. Rakesh Page 14 of 26 _____Z2___ also deposed that they had gone to village Kunwardah and found accused and prosecutrix there and they brought them to Delhi. PW13 proved statement of prosecutrix recorded u/s 164 of the Code in which she, inter-alia, stated that accused after enticing her took her to his village where he used force on her, "jabardasti kari"
and also committed wrong act (galat kam). Moreover, accused in his statement recorded u/s 313 of the Code admitted that he went with the prosecutrix and he was apprehended in the company of the prosecutrix. The above referred evidence has proved that prosecutrix was not only kidnapped but also abducted by the accused with the intention that the prosecutrix may be compelled or forced to do illicit intercourse.
Sexual intercourse on prosecutrix by the accused
18. Prosecutrix/PW1 on this aspect deposed that in the village, accused maintained physical relations with her forcibly number of time against her will and without her consent. PW2, mother of the prosecutrix also deposed that her daughter/prosecutrix was recovered on 02.10.2006 from the company of Rakesh. She told her that accused maintained physical relations with her against her will and without her consent. PW3 proved MLC of prosecutrix as Ex.PW3/A. He, inter alia, deposed that on 03.10.2006 he SC No.6/13 State vs. Rakesh Page 15 of 26 was working as CMO in SDN Hospital and on that day at 1:40 p.m. he examined the prosecutrix aged 16 years vide MLC Ex.PW1/A. He also deposed that on the same day accused Rakesh also medically examined by him vide MLC Ex.PW3/B. He had obtained blood sample, pubic hair, under garments, semen sample of the patient and handed over to Ct. Sanjay Nagar. PW6 also corroborated this fact by inter alia, deposing that at the direction of IO, she took prosecutrix to GTB Hospital for medical examination. The doctor after examination had given samples and she had handed over the same to IO before seizing the same as Ex.PW6/C. PW7 corroborated the fact of medical examination of accused Rakesh and prepared his MLC Ex.PW6/B by CMO. Prosecutrix in her statement Ex. PW1/A made before Ld. M.M. u/s 164 of the Code, inter alia, stated that accused Rakesh committed wrong act with her. On perusal of MLC Ex.PW21/A, I find that it has been mentioned in the MLC that hymen of prosecutrix was found raptured and her vagina was allowing one finger easily. In MLC of accused Ex.PW3/B, it was mentioned that there was nothing to suggest that he could not perform sexual intercourse. On perusal of FSL report Ex.PW20/A, I find that it has been mentioned therein that semen was found on the panty of the prosecutrix. DW1, inter-alia deposed that on 29.09.2006 he alongwith _____Z2___, etc. went to SC No.6/13 State vs. Rakesh Page 16 of 26 the village Lakheshwar of the accused. Accused and prosecutrix were having relations with each other as talks of their marriage were going on. The prosecutrix was not willing to come and she told that she had already solemnized the marriage with accused in temple. Thus, the defence witness has indirectly admitted maintaining of physical relations by the accused with the prosecutrix. On the basis of evidence referred to here in above, it is held that it stands proved beyond reasonable suspicion and shadow of doubt that accused performed sexual intercourse with the prosecutrix. Consequently, it is held that prosecution has successfully proved that prosecutrix was kidnapped and abducted by the accused with the intention that the prosecutrix may be compelled or forced to do illicit intercourse.
Commission of rape on the prosecutrix by the accused
19. In order to prove its case against the accused for the offence of rape punishable u/s 376 IPC, prosecution has to prove firstly, that sexual intercourse was committed with the prosecutrix; secondly, that sexual intercourse was committed with her forcibly against her will by the accused. Let us examine the prosecution evidence on these aspects:SC No.6/13 State vs. Rakesh Page 17 of 26
20. The evidence regarding commission of sexual intercourse with the prosecutrix by the accused has already been discussed here in above. Same is not being repeated to avoid repetition. On the basis of evidence discussed here in above, it is held that accused committed sexual intercourse with the prosecutrix. Let us now examine whether the accused committed sexual intercourse with the prosecutrix forcibly without her consent and against her will.
Sexual intercourse on the prosecutrix by the accused without her consent
21. The testimony of prosecutrix, PW1 on this aspect wherein she deposed that accused committed sexual intercourse with her forcibly and repeatedly has already been discussed here in above. In cross examination too, she denied the suggestion that accused was having relations with her for the last more than one year. She also denied the suggestion that she had maintained physical relations with the accused of her free will after getting married with him. Accused has failed to adduce any evidence regarding marriage of prosecutrix with him. He has himself suggested having maintained physical relations with the prosecutrix. Therefore, on the basis of the evidence on record and particularly discussed SC No.6/13 State vs. Rakesh Page 18 of 26 here in above, it is held that prosecution has proved beyond suspicion and shadow of doubt that accused committed sexual intercourse with the prosecutrix forcibly against her will and without her consent.
22. The other reasons which support my decision about commission of offence of kidnapping/abducting or inducing a woman to compel her marriage, etc. and commission of rape by the accused are firstly, that as per discussion made here in above, the prosecution has proved all the necessary ingredients of both these offences. I found the statement of the prosecutrix consistent, reliable and trustworthy.
23. Secondly, the accused admitted in his statement recorded u/s 313 of the Code that he was having friendly relations with the prosecutrix and they went to village Lakeshwar/Kunwardah, District Jonpur and he maintained physical relations with her after solemnization of the marriage. In this way the prosecution case has been supported even by the accused.
24. Thirdly, the other prosecution witnesses also corroborated the prosecution case. For example PW5 proved copy of FIR Ex.PW5/A and endorsement on rukka as SC No.6/13 State vs. Rakesh Page 19 of 26 Ex.PW5/B. PW11 proved the fact of taking of sealed pullinda from Malkhana to CFSL Calcutta. PW14 is IO who proved all the documents and supported the statements of other witnesses. PW17 is another IO who conducted part of the investigation and corroborated the testimonies of other witnesses. PW20 proved FSL report as Ex.PW20/A. PW1 proved handwriting and signatures of Dr. Amita on Ex.PW21/A. Nothing in cross examination could come out which could support the case of accused.
25. Fourthly, the testimony of DW1 instead of providing benefit to accused, supported the prosecution case, as DW1, inter alia, stated that accused and prosecutrix were having a relations with each other and that they had solemnized marriage in the temple.
26. Fifthly, on perusal of the testimony made before this court by the prosecutrix and the statement given before the Ld. M.M. u/s 164 of the Code, I find that her testimony is consistent and beyond creating any reasonable suspicion and shadow of doubt in the truthfulness of her testimony. Similarly, there is no inconsistency in the statement made before this court and the statement Ex.PW2/A given by prosecutrix before the police.
SC No.6/13 State vs. Rakesh Page 20 of 2627. Sixthly, the prosecutrix was cross examined at length. She denied the physical relations with her consent. Conversely, she stated that accused forcibly maintained physical relations with her number of times against her will and without her consent. The entire cross examination could not bring out any point which may create reasonable suspicion and shadow of doubt in the truthfulness of the prosecution case.
28. Seventhly, there is no evidence on record showing any motive or reason for the prosecutrix to depose falsely against the accused particularly when he was her neighbour and she developed friendship with him unless he had committed the alleged crimes. My view finds supports by a case Bharwada Bhoginbhai Hirjibhai v. State of Gujarat, (SC), 1983 A.I.R. (S.C.) 753, wherein the Apex Court observed:
"***Without the fear of making too wide a statements or of overstating the case, it can be said that rarely will a girl or a woman in India make false allegations of sexual assault on account of any such factor as has been just enlisted. The statement is generally true in the context of the urban as also rural Society. It is also by and large true in the context of the sophisticated, not so sophisticated, and unsophisticated society. Only very rarely can one conceivably come across an exception or two and that too possibly from amongst the urban elites." [Emphasis supplied] SC No.6/13 State vs. Rakesh Page 21 of 26
29. Eighthly, the arguments of Ld. Defence Counsel that PW21 could not identify signature of doctor Amita on Ex.PW21/A will not provide any benefit as the physical relations with the prosecutrix by the accused are not in dispute rather it was suggested to the prosecutrix in the cross examination that accused maintained physical relations with her free will after getting marriage with her.
30. Ninethly, the discrepancies in the statement of witnesses, pointed out by Ld. Defence Counsel on the point of place of arrest of accused and visiting of police at the village, etc. are minor in nature. They are liable to be ignored in view of the principles of law laid down in State v. Jai Hind, (supra) and in case of Appabhai and another v. State of Gujarat, AIR 1988 SC 696 wherein the Apex Court in paragraph 13 observed:
"The Court while appreciating the evidence must not attach undue importance to minor discrepancies. The discrepancies which do not shake the basic version of the prosecution case may be discarded. The discrepancies which are due to normal errors of perception or observation should not be given importance. The errors due to lapse of memory may be given due allowance. The Court by calling into aid its vast experience of men and matters in different cases must evaluate the entire material on record by excluding the exaggerated version given by any witness. When a doubt arises in respect of certain facts alleged by such witness, the proper course is to ignore that fact only unless it goes into the root of the matter so as to demolish the entire prosecution story. The SC No.6/13 State vs. Rakesh Page 22 of 26 witnesses nowadays go on adding embellishments to their version perhaps for the fear of their testimony being rejected by the Court. The courts, however, should not disbelieve the evidence of such witnesses altogether if they are otherwise trustworthy."
31. Tenthly, the arguments of Ld. Defence Counsel that prosecutrix was a consenting party will not provide any benefit to the accused for two reasons, firstly, that it could not be established on record that prosecutrix gave her consent for performing sexual intercourse and secondly, even if for the sake of arguments it is deemed that she gave consent, her consent has no meaning as she was under 16 years of age on the date of commission of rape on her. Clause 6th of Section 375 provides that a man is said to commit rape if accused has sexual intercourse with a woman with or without her consent when she is under sixteen years of age.
32. Eleventhly, the arguments of Ld. Defence Counsel that there were different addresses in the date of birth certificate will not provide any benefit as in all the certificate name of father has been mentioned as Sh. ___Z__. Mother of prosecutrix explained about her two names stating that at the time of birth of the prosecutrix her name was mentioned as __Y1_. He also stated that her real name was __Y1_ but after her marriage her name was SC No.6/13 State vs. Rakesh Page 23 of 26 changed to Sangita and she was having both the names. This fact could not be rebutted by the accused.
33. Twelthly, the parents have explained the delay in reporting the case late to the police. PW2 on this aspect deposed that they found their daughter missing from their house in the evening on 23.09.2006. They tried to search their daughter in the neighbourhood as well as in the houses of her friends for four days and then they went to PS on 27.09.2006. This explanation is satisfactory.
34. Lastly, it is not only the duty of the judge to see that one innocent person should not be punished even if hundred offenders are allowed to go scot-free but also he has to see that the accused who has committed the crime must not go unpunished. It is also duty of the court to separate the grain from the chaff as held in case of Bhagwan Dass vs. State (NCT of Delhi), (2011) 6 SCC 396. While considering and analyzing entire prosecution evidence this court has come to the conclusion that all the oral, circumstantial and scientific evidence has proved that the accused Rakesh committed offence of kidnapping/abduction or inducing a woman to compel her marriage, etc. and committed sexual intercourse with the prosecutrix forcibly against her will. Therefore, it is SC No.6/13 State vs. Rakesh Page 24 of 26 bounden duty of this court to hold the accused guilty and convict him.
CONCLUSION
35. Consequent upon above reasons, discussion and evidence on record and particularly discussed here in above, it is held that the prosecution has successfully proved its case against the accused Rakesh beyond any reasonable suspicion or shadow of doubt that accused enticed or took away and thereby kidnapped/abducted the prosecutrix and committed sexual intercourse with her forcibly against her will. Thus, the accused committed offence of kidnapping/abduction of the prosecutrix with the intent that the prosecutrix may be compelled or may be forced to do illicit intercourse punishable u/s 366 IPC.
36. It is further held that the prosecution has successfully proved its case against the accused Rakesh beyond any reasonable suspicion or shadow of doubt that he committed sexual intercourse with prosecutrix forcibly and repeatedly against her will and without her consent and thereby committed offence of rape punishable u/s 376 IPC.
SC No.6/13 State vs. Rakesh Page 25 of 2637. Consequently, accused is held guilty and convicted for the offence of kidnapping/abducting/inducing woman to compel marriage, etc. punishable u/s 366 and offence of rape punishable u/s 376 IPC, respectively. Announced in the Open Court Dated: 20.02.2013 (DR. T.R. NAVAL) Additional Sessions Judge, (SFTC) Karkardooma Courts, Delhi SC No.6/13 State vs. Rakesh Page 26 of 26