Delhi District Court
State vs . Ghanshyam Das Nandwani on 9 July, 2014
1
FIR No. 140/10
PS - Bharat Nagar
IN THE COURT OF SH. MAHESH CHANDER GUPTA :
ADDITIONAL SESSIONS JUDGE : SPECIAL FAST TRACK
COURT : NORTHWEST DISTRICT : ROHINI : DELHI
SESSIONS CASE NO. : 80/13
Unique ID No. : 02404R0185762010
State Vs. Ghanshyam Das Nandwani
S/o Sh. Ram Kishan
R/o House No. 106,
Shakti Apartment,
Ashok Vihar, Phase - III,
Delhi.
FIR No. : 140/10
Police Station : Bharat Nagar
Under Sections : 376/506 IPC
Date of committal to session Court : 17/08/2010
Date on which judgment reserved : 31/05/2014
Date on which judgment announced : 09/07/2014
J U D G M E N T
1. Briefly stated the case of the prosecution as unfolded by the 1 of 127 2 FIR No. 140/10 PS - Bharat Nagar report u/s 173 Cr.P.C. is as under : That on 24/05/2010 on receiving DD No. 59B HC Tribhuwan Nath reached at House No. 108, Shakti Apartment, Phase - IIIrd, Ashok Vihar, Delhi where on interrogation prosecutrix disclosed the fact that a person R/o House No. 106 had committed rape upon her. Thereafter, on the directions of SHO, IO SI Raj Bala reached at House No. 108, Shakti Apartment, Phase - IIIrd, Ashok Vihar, Delhi and recorded the statement of the prosecutrix. Prosecutrix made the statement which is to the effect that, she is working on the above mentioned address since last 1½ years and the owner Smt. Nirmala lives alone in the said house and her daughter Rajni resides in a nearby flat who often use to visit her mother and she (prosecutrix) also used to visit her (Rajni's) house (Mai Pata Uprokat Par Qareeb 1½ Saal Se Gharelu Naukrani Ka Kaam Karti Hoon. Is Makan Mei Makan Malkin Smt. Nirmala Akeli Hi Rehti Hain. Unki Beti Rajni Nazdik Hi Flat Mei Rehti Hai. Jo Apni Mata Ji Ko Milne Ke Liye Aati Jati Rehti Hai Aur Mai Bhi Unke Ghar Par Aati Jati Rehti Hoon). A person namely Ghanshyam resides alone in the house No. 106, opposite to their (prosecutrix) house. Since his wife was alive, he used to talk to her (prosecutrix) and used to 2 of 127 3 FIR No. 140/10 PS - Bharat Nagar converse with her while she used to go and come (Hamare Makan Ke Samne Wale Makan No. 106 Mei Ghanshyam Naam Ka Aadmi Akela Rehta Hai Jiski Patni Ki Kuch Samay Pehle Maut Ho Gai Thi. Jo Apni Patni Ke Jivit Samay Se Hi Mujhse Baat Karta Tha Aur Aate Jate Baat Cheet Karta Tha). After the death of his wife one day he called her at his house when Mata Ji (her Malkin) was sleeping and she went to his house and he forcibly committed galat kaam with her and threatened her if the incident disclosed to anyone then he will get her removed from her job. She became frightened and due to fear she did not disclose the incident to anyone (Apni Patni Ki Maut Ke Baat Ek din Usne Mujhe Apne Ghar Par Bulaya. Jo Mataji Us Samay So Rahi Thi. Mai Uske Ghar Gai. Jo Usne Jabardasti Mere Saath Galat Kaam Kiya Aur Mujhe Dhamki Di Ki Agar Kisi Ko Bataya To Tere Ko Yahan Se Kaam Se Hatwa Dunga. Jo Mai Dar Gai Aur Yeh Baat Maine Kisi Ko Dar Ke Karan Nahi Batai). Thereafter, whenever she used to go to shop from her house to buy some articles then he used to call her at his house and forcibly used to establish physical relations with her and he had been doing like this for about 5/6 months (Is Ke Baad Jab Bhi Mai Ghar Se Kuch Samaan Aadi Lene Dukaan Par Jaati To Weh Vyakti Mere Ko 3 of 127 4 FIR No. 140/10 PS - Bharat Nagar Apne Ghar Par Bula Leta Aur Jabardasti Meri Marzi Ke Khilaaf Mere Se Sharirik Sambandh Banata. Jo Yeh Qareeb 5/6 Mahine Se Mere Saath Aisa Kar Raha Hai). Yesterday (23/05/2010) she was feeling some pain in her abdomen regarding which she told Mataji (her Malkin) who called her daughter Rajni on which Rajni Didi came at the house to whom she (prosecutrix) told all about the incidents on which she (Rajni) took her to the Hospital where she was got medically examined and Doctor advised for her ultrasound on which Rajni Didi got done her ultra sound and doctor told that she (prosecutrix) is carrying five months pregnancy (Kal Dinank 23/05/2010 Ko Mere Pet Mei Halka Dard Ho Raha Tha To Yeh Baat Maine Mataji Ko Batai. Jo Unhone Apni Beti Rajni Ko Ghar Bulaya. Jo Rajni Didi Ghar Aai. Jo Maine Unhe Puri Baat Batai. Jo Aaj Mujhe Aspataal Le Gai Jahan Par Mera Checkup Karaya Aur Doctor Sahab Ne Mera Ultrasound Karane Ko Kaha. Jo Didi Ne Mera Ultrasound Karaya. Jo Doctor Sahab Ne Mere Pet Mei Panch Mahine Ka Bacha Hona Bataya). All this (the pregnancy of five months) has occurred due to making of forcible physical relations with her without her consent by Ghanshyam living in the neighbourhood house No. 106 (Yeh Sab Paas Ke Makaan No. 106 Mei Rehne Wale 4 of 127 5 FIR No. 140/10 PS - Bharat Nagar Ghanshyam Dwara Mere Saath Meri Marzi Ke Khilaaf Zabardasti Sharirik Sambandh Banane Ke Karan Hua Hai). She wants legal action against Ghanshyam. She has heard her statement and is correct. She wants to get conduct her medical examination. Medical examination of the prosecutrix was got conducted vide MLC No. 10086/10 at BJRM Hospital, Jahangir Puri in which 2426 week foetus was found and ultrasound was advised by the Doctor. Ultrasound was got conducted. From the statement of the prosecutrix, on the inspection of the MLC on finding that offences u/s 376/506 IPC appeared to have been committed, the case was got registered. After registration of the case, investigation was handed to SI Raj Bala. During the course of investigation, site plan was prepared. Statements of the witnesses were recorded. Statement of the prosecutrix u/s 164 Cr.P.C. was got recorded. On 25/05/2010, prosecutrix was produced before the CWC, Kingsway Camp where she was sent to Nirmal Chhaya for one day. On 25/05/2010, accused Ghanshyam Das Nandwani was arrested. His arrest memo and personal search memo were prepared and his disclosure statement was recorded. He was medically examined vide MLC No. 10282/10 at BJRM Hospital, Jahangir Puri and the sealed exhibits handed over by the Doctor after his 5 of 127 6 FIR No. 140/10 PS - Bharat Nagar medical examination were taken into Police possession and were deposited in Malkhana. On 26/05/2010, again prosecutrix was produced before CWC, Kingsway Camp and she was sent to CHG, Nirmal Chhaya and was also ordered for conducting the bone age test of the prosecutrix. Application for permission for bone age test of the prosecutrix was made to MS BJRM Hospital on which Dr. Shipra Rampal, Radiologist gave in writing that bone age test will be conducted after the delivery of the prosecutrix. The Ultrasound report of the prosecutrix was obtained according to which she was 23 weeks pregnant. DNA Test and Bone Age Test of the prosecutrix were got conducted after her delivery. During the course of investigation, the documents were obtained from the Placement Agency, Red Rose, Punjabi Bagh through which prosecutrix was employed at 108 - Ashok Vihar, Delhi.
Upon completion of the necessary further investigation challan for the offences u/s 376/506 IPC was prepared against accused Ghanshyam Das Nandwani and was sent to the court for trial.
2. Since the offence u/s 376 IPC is exclusively triable by the 6 of 127 7 FIR No. 140/10 PS - Bharat Nagar Court of Session, therefore, after compliance of the provisions of Section 207 Cr.P.C. the case was committed to the Court of Session u/s 209 Cr.P.C.
3. Upon committal of the case to the Court of Session, after hearing on charge prima facie a case u/s 376/506 IPC was made out against accused Ghanshyam Das Nandwani. Charge was framed accordingly which was read over and explained to the accused to which he pleaded not guilty and claimed trial.
4. In support of its case prosecution has produced and examined 22 witnesses. PW1 - Dr. J. P. Palyia, CMO, BJRM Hospital, Delhi, PW2 - A. K. Srivastava, Asstt. Director (Biology), DNA Unit, FSL, Rohini, Delhi, PW3 - Dr. Shipra Rampal, Radiologist, BJRM Hospital, Delhi, PW4 - Dr. Meenu, SR (Gynae), BJRM Hospital, Delhi, PW5 - Ms. Rajni Kohli, PW6 - Dr. Gursharan Lamba, Head of Department of Radiology, Sunder Lal Jain Hospital, Delhi, PW7 - Mukesh Ram, PW8 - Smt. Nirmala Nayyar, PW9 - HC Sushil Kumar, PW10 - HC Tribhuvan Nath, PW11 - Constable Ompal Singh, PW12 -
7 of 127 8 FIR No. 140/10 PS - Bharat Nagar Constable Ishwanti, PW13 - W/HC Archana, PW14 - W/Constable Renu, PW15 - HC Rishi Prakash, PW16 - Constable Sunil Kumar, PW17 - Sh. Neeraj Gaur, Learned MM, PW18 - prosecutrix, PW19 - HC Sanjay Kumar, PW20 - Dr. Jyoti Chugh, Consultant, Sunder Lal Jain Hospital, Delhi, PW21 - W/SI Raj Bala and PW22 - SI Satish Kumar.
5. In brief the witnessography of the prosecution witnesses is as under : PW1 - Dr. J. P. Palyia, CMO, BJRM Hospital, Delhi who deposed that he is deputed by MS in place of Dr. Sumit Arora and Dr. Vikas. Both these Doctors have since left the Hospital and their present whereabouts are not known. He is conversant with the handwriting and signatures of both the Doctors as they worked in the Hospital with him. He can identify their handwriting and signatures. On 26/05/2010, patient Ghanshyam Das Nandwani S/o Sh. Ram Kishan aged 66 years male was brought by the Police for medical examination with alleged history of committing sexual assault. He examined the patient. No fresh external injury is seen. He prepared the MLC Ex. PW1/A and 8 of 127 9 FIR No. 140/10 PS - Bharat Nagar patient was referred to S. R. Surgery for further examination. MLC is in his handwriting and bears his signatures at point 'A'. In the Surgery Department the patient was examined by Dr. Vikas, S. R. Surgery. As per his endorsement on Ex. PW1/A, Dr. Vikas examined the patient. His endorsement is from point 'X' to 'X' bearing his signatures at point 'B'. In his opinion there was nothing to suggest that patient was not capable of committing sexual intercourse. Dr. Vikas seized undergarments, blood samples on gauze in the sealed parcels and handed over to SI Raj Bala. Patient refused for semen collection. He (PW1) identified writing and signatures of Dr. Vikas. He has seen the MLC of prosecutrix (name withheld) aged 19 years female. She was brought to the Hospital on 25/05/2010 at 2:30 a.m. by SI Raj Bala for medical examination with complaint for 45 months amenhorea (actual date not remembered by the patient). The patient was examined in the casualty by Dr. Sumit Arora. On local examination he found old multiple burn mark over left hand and forearm and old scar mark over dorsal aspect of right hand. Dr. Sumit Arora prepared MLC vide Ex. PW1/B and he referred the patient to S. R. Gynae. He (PW1) identified his signatures at point 'A' on the MLC.
9 of 127 10 FIR No. 140/10 PS - Bharat Nagar PW2 - A. K. Srivastava, Asstt. Director (Biology), DNA Unit, FSL, Rohini, Delhi who deposed that on 18/10/2010 three blood samples of accused Ghanshyam Das Nandwani, prosecutrix (name withheld) and female Baby Mani were collected in the DNA unit FSL Rohini for DNA analysis in connection with FIR No. 140/10 dated 25/05/2010 u/s 376/506 IPC. He has conducted DNA analysis of Ex. 1 i.e. accused Ghanshyam Das, Ex. 2 prosecutrix (name withheld) and Ex. 3 Female baby Mani and prepared his DNA report. On conclusion it was found that DNA profiling (STR analysis) performed on the exhibits provided is sufficient to conclude that source Ex. 1 (blood sample of accused Ghanshyam Das) and Ex. 2 (blood sample of prosecutrix (name withheld)) are biological father of source Ex. 3 (blood sample of female baby Mani). His detailed report in this regard is Ex. PW2/A signed by him at point 'A'. Annexure 1A is the identification form of accused Ghanshyam Das Nandwani signed by him at point 'A'. Same is Ex. PW2/B. Annexure 1B is the identification form of prosecutrix (name withheld) signed by him at point 'A'. Same is Ex. PW2/C and annexure 1C is identification form of Baby Mani signed by him at point 'A'.
10 of 127 11 FIR No. 140/10 PS - Bharat Nagar Same is Ex. PW2/D. He forwarded the report vide letter dated 11/11/2010 to the concerned SHO through Director. The forwarding letter is Ex. PW2/E. PW3 - Dr. Shipra Rampal, Radiologist, BJRM Hospital, Delhi who deposed that on 20/08/2010 (Be read as 20/10/2010), she examined XRay Plates of patient/prosecutrix (name withheld) vide MLC No. 16622. After examination the XRay plates of both wrists AP view, both shoulder AP view, both elbow AP view and pelvis AP view, she opined the estimated bone age between 2022 years on that day. Her detailed report is Ex. PW3/A signed by her at point 'A'.
PW4 - Dr. Meenu, SR (Gynae), BJRM Hospital, Delhi who deposed that she has been deputed by the MS of BJRM Hospital on behalf of Dr. Anjali who was working as SR (Gynae) in BJRM Hospital. Dr. Anjali has since left the services of the Hospital. She can identify the handwriting and signatures of Dr. Anjali as she has seen her writing and signing during the course of her official duties. She has seen MLC of Patient/prosecutrix (name withheld). She was brought in the casualty 11 of 127 12 FIR No. 140/10 PS - Bharat Nagar on 25/05/2010 at 2:30 a.m. and examined by CMO Dr. Sumit Arora. She was referred to SR (Gynae) by the CMO in Gynae Department. Dr. Anjali examined the patient. The patient was brought for medical examination by ASI Rajbala with alleged history of sexual assault. According to the patient she had been assaulted by a neighbour for the last six months. Last episode occurred 07 days back. After that she had taken bath and changed clothes. Dr. Anjali examined the patient. As per menstrual history as per the patient, last period was 34 months back, exact date not know. Per abdominal examination - uterus corresponding to 2426 weeks, fetal parts palpable. Local examination
- no visible external injury seen over thigh, perineum. Hymen torn, no erythema, no induration seen, no bleeding or leaking PV. OS closed. Cervix uneffaced. Patient was advised ultrasound, Iron Calcium tablet and injection tetnus. Dr. Anjali made her endorsement on MLC Ex. PW1/B (already exhibited) in red encircled area as PX bearing her signatures at point 'B1'. She identify her handwriting and signatures.
PW5 - Ms. Rajni Kohli who deposed that her mother Smt. Nirmala Nayyar resides at Flat No. 108, Shakti Apartment. It is situated 12 of 127 13 FIR No. 140/10 PS - Bharat Nagar in the next plot near her flat. There was a made (maid) servant namely prosecutrix (name withheld) aged about 19 years. On 23/05/2010 she (prosecutrix) told that she was having some pain in her abdomen and then her (PW5 - Ms. Rajni Kohli) mother called her (PW5 - Ms. Rajni Kohli). She (prosecutrix) told that she was not having period since 45 months. Since on 23/05/2010, it was Sunday that's why she did not get her to the Doctor. On 24/05/2010, she had taken prosecutrix (name withheld) to Sunder Lal Jain Hospital in the morning. After examination, Doctor told that she (prosecutrix) is having pregnancy for five months. Her ultrasound was also taken. She (prosecutrix) was asked about the pregnancy and she told that the uncle who resides in Flat No. 106, Shakti Apartment called her and did the same and he used to call her in his flat then they informed to the Police on 100 number. IO recorded her (PW5) statement. She identify the accused Ghanshyam Das present in the Court who used to reside in Flat No. 106, Shakti Apartment. Prosecutrix (name withheld) was got kept as maid servant by her brother who resides at Ashik (Ashok) Vihar. Prosecutrix (name withheld) was appointed through Red Rose Placement Agency, Punjabi Bagh for a sum of monthly salary of Rs. 1,500/ because her mother 13 of 127 14 FIR No. 140/10 PS - Bharat Nagar having ill health and she is unable to walk properly. She handed over treatment papers and ultrasound report of prosecutrix (name withheld) to their IO. She identify photocopy of treatment & ultrasound recorded of prosecutrix (name withheld). The same is mark PW5/A and B. IO recorded her (PW5) statement.
PW6 - Dr. Gursharan Lamba, Head of Department of Radiology, Sunder Lal Jain Hospital, Delhi who deposed that on 24/05/2010, one patient (name withheld), 20 years female was referred for antenatal ultrasound examination by Dr. Neerja Dayal Unit vide OPD Card Ex. PW6/A. The ultrasound requisition form is Ex. PW6/B. After duly filling the PNDT Form, he conducted the ultrasound of patient (name withheld) at Sunder Lal Jain Hospital. He prepared his report Ex. PW6/C which bears his signatures at point 'A'. The age of the foetus was 20 weeks plus one day and it was normal report. The sonograph is Ex. PW6/D. PW7 - Mukesh Ram who deposed that he is working with Red Rose Placement Agency at West Punjabi Bagh at House No. 4546, 14 of 127 15 FIR No. 140/10 PS - Bharat Nagar Swayam Siddha Colony, West Punjabi Bagh, Delhi. It is a registered firm. The copy of acknowledgment of the registration of the firm is Ex. PW7/A and the Form 'A' issued by the Registrar of Firms is Ex. PW7/B. He has brought the record of the placement agency. As per register, one prosecutrix (name withheld) was employed as maid at the house of Rahul Nayyar, resident of 108, Shakti Apartments, Ashok Vihar, Phase - III having phone No. 9810888863. the photocopy of the relevant page of the register is Ex. PW7/C (original seen and returned). He can not produce any other document except Ex. PW7/A to 7/C already placed on the Judicial file regarding employment of prosecutrix (name withheld) and registration of their firm.
PW8 - Smt. Nirmala Nayyar who deposed that she had a maid by the name of prosecutrix (name withheld) who was working at her house since about 22 and a half years. She does not remember the date, month or year, one day prosecutrix (name withheld) told her that she was having pain in her stomach. Since she (PW8) was living alone, she called her daughter Rajni. She took her (prosecutrix) to Sunder Lal Jain Hospital where she was examined and it was found that she was 15 of 127 16 FIR No. 140/10 PS - Bharat Nagar pregnant. She then informed the Police. Her children had arranged the maid/prosecutrix (name withheld) from an agency at Punjabi Bagh but she does not know the name of the agency. Her monthly salary was Rs. 1,500/. She does not know how prosecutrix (name withheld) had become pregnant. This witness was also crossexamined by the Learned Addl. PP for the State.
PW9 - HC Sushil Kumar, who deposed that on 25/05/2010, he was posted as Head Constable at PS - Bharat Nagar. On that day, he was doing the job of Duty Officer from 12:00 mid night to 8:00 a.m. HC Tribhuvan brought a Rukka at around 4:40 a.m. sent by SI Raj Bala. On the basis of said Rukka, he recorded FIR No. 140/10 under Section 376/506 IPC, computerised copy of the same is Ex. PW9/A which bears his signatures at point 'A' (original seen and returned). He also made endorsement on the Rukka which is Ex. PW9/B vide DD No. 10A which bears her signatures at point 'A'. After registration of the FIR, he handed over the Rukka in original and copy of FIR to HC Tribhuvan.
PW10 - HC Tribhuvan Nath who deposed that on 16 of 127 17 FIR No. 140/10 PS - Bharat Nagar 24/05/2010, he was posted at PS - Bharat Nagar, Delhi. On that day, he received DD No. 59B at about 9:36 p.m. regarding a quarrel at House No. 108, Shakti Apartment, Phase - III. On receipt of said DD, he reached at the said place where he met Nirmala Devi and her domestic maid/prosecutrix (name withheld). Prosecutrix (name withheld) informed him that Ghanshyam Das who is residing in front of house of Nirmala had committed wrong act with her. W/SI Rajbala also reached at the spot alongwith Constable Yashwanti. SI Rajbala interrogated prosecutrix (name withheld) and sent her for medical examination with W/Constable Yashwanti and him (PW10). They took prosecutrix to BJRM Hospital for her medical examination. Thereafter, they again came back to the spot. IO SI Rajbala recorded the statement of prosecutrix (name withheld) and prepared rukka on the same and handed over the same to him for registration of FIR. He took rukka to PS and got the FIR registered. Thereafter, he came at the spot and handed over copy of FIR and original rukka to IO. IO recorded his statement.
PW11 - Constable Ompal Singh who deposed that on 17 of 127 18 FIR No. 140/10 PS - Bharat Nagar 25/05/2010, he was posted at PS - Bharat Nagar. On that day, he was on patrolling duty in front of Laxmibai College, Ashok Vihar at around 7:00 p.m. SI Rajbala came from the side of Ashok Vihar and she stopped on seeing him. He received a secret information that the person who is involved in the commission of rape in Shakti Apartment is going towards Shakti Apartment. W/SI Rajbala accompanied him to the Shakti Apartment. When the Police team was at a distance of 3035 paces away from the gate of Shakti Apartment, the informer pointed out towards a person who was involved in the commission of offence. Accused Ghanshyam Das present in the Court, towards whom secret informer pointed out, was stopped and interrogated. Accused was arrested vide memo Ex. PW11/A and his personal search memo Ex. PW11/B was also prepared, both bears his signature at points 'A'. Accused was taken for medical examination to BJRM Hospital. After medical examination, Doctor handed over MLC of accused alongwith sealed pullinda and sample seal. Thereafter, accused was brought to PS and handed over to IO alongwith case property who seized the case property vide memo Ex. PW11/C. Accused made disclosure statement which is Ex. PW11/D, both bears his signature at point 'A'. IO recorded 18 of 127 19 FIR No. 140/10 PS - Bharat Nagar his statement.
PW12 - Constable Ishwanti who deposed that on 25/05/2010, she was posted as Constable at PS - Rani Bagh. On that day, she joined investigation of the present case with HC Tribhuvan Nath. He accompanied him to House No. 108, SFS Flats, Ph - 3, Ashok Vihar, Delhi. At the aforesaid house, one maid servant and one old lady were present there. One prosecutrix (name withheld) was taken for medical examination at BJRM Hospital. She was brought to the PS. IO also prepared the site plan and also recorded statement of owner of the said house namely Bimla as well as her daughter. Search was made to trace the accused but he was not traceable.
PW13 - W/HC Archana who deposed that on 24/05/2010, she was posted at PS - Bharat Nagar. On that day, she was working as Duty Officer from 4:00 p.m. to 12:00 mid night. At about 9:36 p.m., one information was received in the Police Station through wireless regarding quarrel at House No. 118, SFS Flat, Ashok Vihar, Phase - III, Shakti Apartment, Behind Bharat Nagar School. She recorded the said 19 of 127 20 FIR No. 140/10 PS - Bharat Nagar information in the Roznamcha register. Copy of the said DD placed on file verified by the SHO and attested by the ACP is Ex. PW13/A (OSR). The said DD was marked to HC T. N. Yadav for necessary action.
PW14 - W/Constable Renu who deposed that on 24/05/2010, she was present on her duty at Police Control Room, PHQ in the night shift duty. On that same day, at about 9:30 p.m., one information was received from the caller Manish Nair, R/o 108, SFS Flats, Ashok Vihar, Phase - III, Shakti Apartment, Behind Bharat Nagar School, New Ashok Vihar, Delhi regarding quarrel. She recorded this information and it was transmitted to the concerned PCR of the area and concerned Police Station for necessary action. She has brought the computerised copy of the PCR Form. Copy already placed on file is Ex. PW14/A. PW15 - HC Rishi Prakash who deposed that on 24/05/2010, he was posted as Incharge at PCR Van Commander - VIII in North West District. On that day after receiving the call they reached at the spot i.e. 108, SFS Flats, Phase - III, Ashok Vihar, Delhi where 20 of 127 21 FIR No. 140/10 PS - Bharat Nagar they met Nirmala Devi alongwith her servant/prosecutrix (name withheld). On the complaints of prosecutrix (name withheld) regarding pain in her abdomen. She was medically examined in Sunder Lal Jain Hospital and after medical examination it was revealed that she is pregnant of 20 weeks and prosecutrix (name withheld) is naming about the resident of Flat No. 106 in this regard. HC Tribhuvan from PS - Bharat Nagar came there and call was handed over to him. He (PW15) has brought the call register. The copy of the call register is Ex. PW15/A (OSR).
PW16 - Constable Sunil Kumar who deposed that on 25/05/2010, he was posted as Constable in PS - Bharat Nagar. On that day, HC Tribhuvan received DD No. 59B and thereafter, he alongwith him reached at the spot i.e. House No. 108, Shakti Apartment, Ashok Vihar, Delhi where they met W/Constable Ishwanti, prosecutrix (name withheld) alongwith W/SI Raj Bala. W/SI Raj Bala recorded the statement of the prosecutrix (name withheld). Thereafter, they reached at BJRM Hospital where prosecutrix (name withheld) was medically examined. After medical examination they came back at House No. 21 of 127 22 FIR No. 140/10 PS - Bharat Nagar 108, Shakti Apartment, Ashok Vihar. W/SI Raj Bala prepared Tehrir and handed over the same to HC Tribhuvan for getting registered the FIR. IO prepared the site plan of House No. 106, Shakti Apartment. HC Tribhuvan came at the spot and handed over the IO the copy of FIR and original rukka.
PW17 - Sh. Neeraj Gaur, Learned MM who deposed that on 25/05/2010, he was posted as MM at Rohini Courts. On that day, an application filed by W/SI Raj Bala for recording the statement u/s 164 Cr.P.C. was marked to him by Sh. Ashutosh Kumar, the then Learned ACMM. He fixed the date for recording the statement u/s 164 Cr.P.C. for that day itself vide his endorsement Ex. PW17/A bearing his signatures at point 'A'. He recorded the statement of witness/prosecutrix (name withheld), Aged - 19 years on Oath u/s 164 Cr.P.C. in the Court Chamber attached to his Court. The proceedings are Ex. PW17/B (running into three pages) bearing his signatures at point 'A'. The thumb impression of the witness was obtained by him at point 'B'. The witness was duly identified by SI Raj Bala vide her identification statement bearing her signatures at point 'C'. Upon completion of the statement, 22 of 127 23 FIR No. 140/10 PS - Bharat Nagar the IO applied for the copy of the same, which was allowed by him vide his endorsement Ex. PW17/C bearing his signatures at point 'A'. The application was allowed and bears his signatures at point 'B'. Thereafter, the entire proceedings was kept in a sealed pullinda, sealed with the Court seal and was sent to the concerned Court.
PW18 - Prosecutrix is the victim who deposed regarding the incident and proved her statement made to the Police Ex. PW18/A bearing her thumb impression at point 'A' and also proved her statement u/s 164 Cr.P.C. Ex. PW17/B bearing her thumb impression at point 'B' and further deposed that she gave birth to a female baby child at Deen Dayal Upadhya Hospital, Delhi. The coloured photograph affixed on the left top corner encircled at point 'X' is of her female baby child, on DNA, Finger Printing Identification Form Ex. PW2/B. PW19 - HC Sanjay Kumar who deposed that on 26/05/2010, he was posted as MHC(M) in PS - Bharat Nagar. On that day, SI Raj Bala has deposited two sealed pullindas alongwith sample seal in the Malkhana. He made entry at serial No. 187 of Register No. 23 of 127 24 FIR No. 140/10 PS - Bharat Nagar
19. He has brought the Register No. 19. The copy of the relevant entry is Ex. PW19/A (OSR). Sealed pullindas remained intact during his custody.
PW20 - Dr. Jyoti Chugh, Consultant, Sunder Lal Jain Hospital, Delhi who deposed that on 24/05/2010, she alongwith Dr. Neerja Dayal and Dr. Aruna Behl were on duty in OPD. On that day, one patient (name withheld) aged about 20 years came in the Hospital and was medically examined by them. As per OPD slip, the history of her period of amenorrhea was 34 months. Patient was unmarried. Examination findings : Per abdomen uterus at 24 weeks, foetal parts pulpable, foetal heart plus regular. Heart and lungs examination was normal. The patient was advised an ultrasound examination, blood tests and an injection of tetanus was advised. They used to give the original OPD card to the patient and they did not keep the copy of the same in their record. The handwriting on the OPD card is of Dr. Aruna Behl who is presently out of India. She is acquainted with the handwriting and signature of Dr. Aruna Behl as she had worked with her. The copy of OPD card is Ex. PW20/A. 24 of 127 25 FIR No. 140/10 PS - Bharat Nagar PW21 - W/SI Raj Bala who is the Investigating Officer (IO) who deposed that on 24/05/2010, she was posted as SI at Sub Division, Ashok Vihar, Delhi in Rape Cases. On that day, after receiving the information from SHO, PS Bharat Nagar, she reached PS Bharat Nagar at about 10:00 a.m. where she was informed about DD No. 59B regarding rape which was attended by HC Tribhuvan Nath. Thereafter, she reached at the spot i.e H. No. 108, Shakti Apartment, Ashok Vihar, PhaseIII, Delhi where HC Tribhuvan Nath, W/Constable Ishwanti, Constable Sunil and resident of said house met her. Prosecutrix (name withheld) was also found present there. On inquiry, she told that one uncle who is resident of H.No. 106 is continuously committing rape upon her for last 56 months due to this, she is pregnant and she wanted to get her medically examined. Thereafter, she (PW21) alongwith her staff took prosecutrix (name withheld) to BJRM hospital for medical examination where she was got medically examined. Doctor informed that prosecutrix (name withheld) is pregnant. She (PW21) collected the MLC of prosecutrix (name withheld). She recorded the statement of prosecutrix (name withheld) which is already Ex. PW18/A. 25 of 127 26 FIR No. 140/10 PS - Bharat Nagar Thereafter, she prepared rukka Ex. PW21/A, bearing her signatures at point 'A' and the same was handed over to HC Tribhuvan Nath for getting the FIR registered. Thereafter, she along with prosecutrix, W/Constable Ishwanti and Constable Sunil came at the spot i.e. H. No. 106, Shakti Apartment, Ashok Vihar, Phase III, Delhi where she prepared site plan at the instance of prosecutrix (name withheld) which is Ex. PW21/B, bearing her signatures at point 'A'. HC Tribhuvan came at the spot and handed over to her copy of FIR and original rukka. She recorded the statement of witnesses. Accused Ghanshyam Das Nandwani was searched but his house was found locked and he was not traceable. Thereafter, they came back to Police Station. On the same day, in the noon hours, she alongwith Constable Rajrani took prosecutrix (name withheld) to BJRM Hospital for getting her ultrasound examination conducted but the Doctor was on leave that day. Thereafter, they took prosecutrix to the Rohini Courts for getting recorded of her statement u/s 164 Cr.P.C. She moved an application Ex. PW21/C, bearing her signatures at point 'A' for getting recorded the statement of the prosecutrix (name withheld) u/s 164 Cr.P.C. and her statement was recorded by the Learned MM. Thereafter, she obtained 26 of 127 27 FIR No. 140/10 PS - Bharat Nagar the copy of her said statement which is Ex.PW21/D, bearing her signatures at point 'A'. Thereafter, prosecutrix was sent to Nirmal Chhaya. She (PW21) came back to PS. She received the information that accused Ghanshyam Das Nandwani is roaming around Shakti Apartment. Thereafter, she reached near Shakti Apartment where HC Sushil and Constable Ompal met her and they informed her that they received a secret information that accused Ghanshyam Das Nandwani is going towards Shakti Apartment. Thereafter, she alongwith them moved towards Shakti Apartment gate and from there, accused Ghanshyam Das Nandwani was apprehended at the instance of secret informer. Accused was interrogated and arrested vide arrest memo Ex. PW11/A and his personal search was conducted vide memo Ex. PW11/B, both bearing her signatures at point 'B'. Accused Ghanshyam Das Nandwani made his disclosure statement Ex. PW11/D, bearing her signatures at point 'B'. Accused was brought to Police Station and sent to BJRM Hospital through HC Sushil and Constable Ompal for medical examination. After medical examination, they came back and handed over to him sealed pullinda containing exhibits which was seized vide memo Ex. PW11/C, bearing her signatures at point 'B'. Case property 27 of 127 28 FIR No. 140/10 PS - Bharat Nagar was deposited in the malkhana and accused was kept in Police lockup. On 26/05/2010, she has to proceed out of station in connection with investigation of some other case, so case file was handed over to SI Satish Kumar. On 01/06/2010, she came back to Delhi and further investigation of this case was again handed over to her. On 25/06/2010, she collected the documents from placement agency through (which) prosecutrix was employed, same are Ex. PW7/A to Ex. PW7/C. After completion of investigation, challan was prepared and filed in the Court. In September 2010, she came to know that prosecutrix (name withheld) had delivered a girl child in Nirmal Chhaya and on 18/10/2010, she alongwith SI Satish took prosecutrix (name withheld), her girl child and accused Ghanshyam Das Nandwani to FSL, Rohini for taking the blood samples for DNA examination where their blood samples were taken and deposited in FSL. Later on, she collected the DNA report and filed in the Court. During investigation, on 25/03/2013, prosecutrix (name withheld) was medically examined regarding her age estimation and thereafter, she collected the report according to which, she was found to between 23 to 25 years of age. Accused Ghanshyam Das Nandwani is present in the Court.
28 of 127 29 FIR No. 140/10 PS - Bharat Nagar PW22 - SI Satish Kumar who deposed that 26/05/2010, he was posted as SI in PS - Bharat Nagar. On that day, investigation of this case was handed over to him by the SHO. He inspected the file and found that accused has already been arrested and he was in the lockup, PS - Ashok Vihar and prosecutrix (name withheld) was in the Nirmal Chhaya. On that day, she alongwith Lady Constable Raj Bala reached at Nirmal Chhaya and prosecutrix was taken from there and she was produced before CWC, Kingsway Camp. He moved an application for the age estimation of the prosecutrix. The prosecutrix was ordered to be sent to Nirmal Chhaya after the age estimation test. Thereafter, they took the prosecutrix (name withheld) in BJRM Hospital but the concerned Doctor was not found available. Thereafter, they came back to Police Station. Accused Ghanshyam Das Nandwani present in the Court was taken out from Police lockup and they reached in Rohini Court. Accused was produced before the ACMM and he was sent to JC and prosecutrix was sent to Nirmal Chhaya and the case file was handed over to the SHO in the evening on the same day. On 18/10/2010, he alongwith SI Raj Bala remained in the investigation of the present case.
29 of 127 30 FIR No. 140/10 PS - Bharat Nagar Accused Ghanshyam Das was taken to FSL, Rohini for taking the blood sample of DNA Examination and his blood sample was taken. Prosecutrix (name withheld) alongwith her baby was also taken to FSL and their blood sample was also taken for DNA Examination. Prosecutrix (name withheld) was produced in BJRM Hospital for her age estimation and her age estimation test was got conducted. Later on supplementary charge sheet was prepared and filed in the Court alongwith DNA profiles and age estimation report.
The testimonies of the prosecution witnesses shall be dealt with in detail during the course of appreciation of evidence.
6. Statement of accused Ghanshyam Das Nandwani was recorded u/s 313 Cr.P.C. wherein he pleaded innocence and false implication. Accused opted to lead defence evidence and examined three witnesses in his defence namely DW1 - Smt. Shanti Devi W/o Ram Chander, Age - 50 years, R/o B - 897, Holambi Kalan, Delhi, DW2
- Sh. Sanjay Gera S/o I. D. Gera, Age - 47 years, R/o C8/181, Sector - 8, Rohini, Delhi and DW3 - Ms. Charu W/o Mahender Verma, Age - 51 30 of 127 31 FIR No. 140/10 PS - Bharat Nagar years, R/o 19/42, Sector - 16, Rohini, Delhi.
DW1 - Smt. Shanti Devi, who deposed that she used to live at the address at B - 897, Holambi Kalan, Delhi. She does the house hold work. She does not know anything about the present case. She used to come at 8:00 a.m. and used to leave the house at about 9:00/9:15 am. Accused also used to leave the house till that time. No one used to come in her presence in the house. She regularly used to come on her work. No one was residing with the accused.
DW2 - Sh. Sanjay Gera, who deposed that he is doing the works of accounts in Sadar Bazar at the shop of Ghanshyam Das Nandwani. He used to come at the shop in the morning at about 10:00/10:15 a.m. and he used to close the shop in the evening at around 7:30/7:45 p.m. He never used to go from the shop during that hours. He (DW2) know about the present case. He alongwith 2/3 persons had gone to PS Bharat Nagar and PS Ashok Vihar after the arrest of the accused. Police had not recorded his statement. Police told him that they will call him when needs required but they did not call him.
31 of 127 32 FIR No. 140/10 PS - Bharat Nagar DW3 - Ms. Charu, who deposed that accused Ghanshyam Das Nandvani is her brotherinlaw (Jija) in relation. She used to go at the house of Ghanshyam Das on Sunday to Sunday. She used to go at the house of Ghanshyam Das to look after his house hold work (ghar ka kaam). She used to go at the house of Ghanshyam Das at around 9:30/9:45 a.m. and remained there till 9:30/9:45 p.m. In the morning after taking the breakfast, Sh. Ghanshyam Das used to leave the house for park etc. and used to come in the evening at about 6:30 p.m. No one used to come to meet Ghanshyam Das during the day, one maid who was residing in the neighbourhood used to come in the house of Ghanshyam Das Nandwani for keeping polythene etc. (polythene vagera rakhne ke liye aati thi). She (DW3) had seen her only once or twice at the house of Ghanshyam Das Nandwani. She does not remember the time when the maid had come to the house of Ghanshyam Das Nandwani.
The testimonies of the defence witnesses shall be dealt with in detail during the course of appreciation of evidence.
32 of 127 33 FIR No. 140/10 PS - Bharat Nagar
7. Learned Counsel for the accused submitted that all the prosecution witnesses are not reliable and are fabricating a false story for the success of their case. The witnesses of the prosecution are not trustworthy and are selfcontradictory to one another and the prosecutrix is fully tutored. Prosecutrix is a grown up major lady of 22 years and is not a reliable witness. Learned Counsel for the accused further submitted that PW18 - prosecutrix has cooked up an improved version of the alleged incident of rape. There is a completely different story floated by her which was not her story in her statement to the Police. The story fabricated and weaved by the prosecutrix is completely contrary to her FIR as well as her statement u/s 164 Cr.P.C. She contradicts her own statement made to the Police as well as the Learned MM regarding the manner and reason in which she had gone in the house of the accused. Learned Counsel for the accused further submitted that FIR reveals that since the prosecutrix was exposed because of her pregnancy, she levelled allegations of rape against the accused. Had she not been pregnant, she would never made the FIR. This fact is corroborated and confirmed by the prosecutrix in her statement when a question was put to her in this regard which is as 33 of 127 34 FIR No. 140/10 PS - Bharat Nagar follows : "Q. Is it correct that when your ultrasound was conducted and Doctors revealed that you were pregnant, then only you alleged that Ghanshyam was the father of the child?
Ans. Yes. It is correct."
Learned Counsel for the accused further submitted that no independent person from the colony was inquired for the statement recorded. Learned Counsel for the accused further submitted that the suggestion was given to PW21 - SI Raj Bala that money was being demanded from the accused and where after, the FIR was lodged against the accused. Learned Counsel for the accused further submitted that PW21 - SI Raj Bala has stated in her chief that DD No. 59B is regarding rape but DD No. 59B does not say so. On her crossexamination, she admits that DD No. 59B is only regarding a quarrel in House No. 118, SFS Flats. Learned Counsel for the accused further submitted that PW1
- Dr. J. P. Palia, who conducted the physical examination of the accused and has stated there was no external injury upon the accused. The only opinion was that the patient was capable of sexual intercourse. This witness also stated regarding the physical examination of the prosecutrix by Dr. Sumit Arora, vide MLC Ex. PW1/B. Dr. Sumit Arora did not 34 of 127 35 FIR No. 140/10 PS - Bharat Nagar enter the witness box. Learned Counsel for the accused further submitted that PW4 - Dr. Meenu, who deposed regarding medical examination of the prosecutrix by Dr. Anjali, who had conducted the gynae examination of the prosecutrix. She did not have personal knowledge of the case and patient was also not examined, nor the report prepared in her presence. Learned Counsel submitted that no reason has been given why Dr. Anjali was not available and leaving the services in the said Hospital is no excuse and the accused has been prejudiced by nonexamination of Dr. Anjali by the prosecution, whose address could have been taken from Medical Council of India and thereafter, she could have been produced for her evidence. Learned Counsel for the accused further submitted that PW5 - Rajni Kohli is the daughter of the employer of the prosecutrix. She states about the fact of pregnancy of the prosecutrix and the important fact to be noted is that she does not say anywhere that when the prosecutrix was confronted by her regarding her pregnancy. All what the prosecutrix told her that "it was a result of her relationship with Uncle of Flat No. 106. She was asked about the pregnancy and she told that the Uncle who resides in Flat No. 106, Shakti Apartments, called her and did the same and he used to call her 35 of 127 36 FIR No. 140/10 PS - Bharat Nagar in his flat then we informed to the Police No. 100 number". In cross examination, this witness stated that her mother called 100 number on 24/05/2010 at 7:30/8:00 p.m. However, she denied the suggestion that her mother made a call regarding some quarrel. This witness had admitted that there is a Temple, which is at a distance of 10 feet from her mother's house and the only Temple in Shakti Apartments and also that the Priest of the Temple reside at the backside of the Temple. She also admitted that opening time of the Temple was 5:00 p.m. and for two three hours in the afternoon it is closed. She also admitted that in front of her mother's house, Flat No. 107 is situated and entrance door of both the houses face each other. This witness admitted that the house was kept under lock and keys by her mother, who used to keep the keys under her pillow, which was taken out by the maid, in case any visitor came to the house. The witness also stated that there were three ways from her mother's house to go to the market. The shortest way was from front of Flat No. 106. The witness also admitted that there were two entrances in the flat of the house. She also admitted that during the medical of the prosecutrix, she was accompanying the prosecutrix and also when the statement of the prosecutrix was recorded, she alongwith 36 of 127 37 FIR No. 140/10 PS - Bharat Nagar her husband was present. Learned Counsel for the accused further submitted that PW8 - Nirmala Nayyar is the mother of the employer of the prosecutrix. She stated that as the prosecutrix complained the pain in her stomach, she sent her alongwith her daughter to Sunder Lal Jain Hospital and it was informed that she was pregnant. On coming to know of this fact, she informed the Police. This witness did not know how prosecutrix had become pregnant and was crossexamined by the Learned Addl. PP. Even after being crossexamined, this witness resiled from her statement Mark PW8/A from various portions 'A' to 'A' and 'B' to 'B'. The witness further deposed in her crossexamination that prosecutrix (name withheld) used to lock the door and also used to open the same. She admitted that there was a Temple near her house and people used to visit that Temple. This witness also admitted that throughout the investigation by the Police and at the time of recording of statement under Section 164 Cr.P.C. by the MM, her soninlaw was present. She admitted that she did not know the name of the accused but he is resident of Flat No. 106 and further deposed that the Police stayed at the spot for about one hour, but had no knowledge as to whether her statement was recorded on the same day or on the next day.
37 of 127 38 FIR No. 140/10 PS - Bharat Nagar Learned Counsel for the accused further submitted that PW10 HC Tribhuvan Nath denied that the proceedings of the Police were done at Police Station, but from the statements of the prosecutrix and IO, it would be clear that the Police have done all the manipulation in the Police Station. Learned Counsel for the accused further submitted that none of inhabitants of the area or the Chowkidar has been joined as a witness to the alleged arrest of the accused. Learned Counsel for the accused further submitted that PW14 - W/Constable Renu has stated that at 9:30 p.m. information was received from House No. 108, SFS Flats from one Manish Nayar that some quarrel was taking place. The important fact to be noted is that in this PCR call, there is no mention about the alleged rape or the allegations of the prosecutrix. Learned Counsel for the accused further submitted that PW15 - HC Rishi Prakash has stated that he was Incharge of PCR Van, who went to 108, SFS Flats and took prosecutrix (name withheld) to Sunder Lal Jain Hospital, where she complained about pain in her abdomen and it was revealed that she was 20 weeks pregnant and prosecutrix (name withheld) was naming the resident of Flat No. 106 and HC Tribhuvan, PW10, from PS Bharat Nagar had come and call was handed over to 38 of 127 39 FIR No. 140/10 PS - Bharat Nagar him. Even this witness who was first hand did not state anything regarding the allegations of the prosecutrix regarding the alleged rape. Learned Counsel for the accused further submitted that PW16 - Constable Sunil Kumar has been planted as a witness and what he states is contrary to the version of other Police witnesses. According to this witness after receiving the DD No. 59B by HC Tribhuvan Nath PW10, they reached the house of the prosecutrix. This witness categorically states that W/SI Raj Bala recorded the statement of prosecutrix and thereafter they took the prosecutrix for medical to BJRM, whereafter they returned to the spot and then W/SI Rajbala prepared a Tehrir and handed it over to HC Tribhuvan Nath, PW10. On crossexamination, this witness falls flat on the floor. He is showing the position of Flat No. 106 and 108 one above the other (Upper Niche), which itself would reveal that he never visited the place of alleged incident. Learned Counsel for the accused further submitted that as per PW21 - Rajbala IO they had reached back to the Police Station at 6:00 a.m. alongwith the prosecutrix (name withheld) and that she had sent the Tehrir (Rukka) from the Hospital at about 4:00 a.m. Thereafter she stated that on her instructions, HC Tribhuvan Nath PW10, came back at the spot 39 of 127 40 FIR No. 140/10 PS - Bharat Nagar alongwith copy of FIR and original rukka at 5:30/5:45 a.m., whereafter she prepared the site plan at 5:30 to 6:00 a.m. This witness admitted that she had not shown the room in the site plan in which the alleged rape was committed. Neither she inspected the house where the alleged rape was committed, even later on. On being confronted with her site plan, she admits that there was a Temple, park and a thorough passage between the houses shown in the site plan and even the entrance of House No. 106 was not shown by her. Learned Counsel for the accused further submitted that prosecution has failed to prove its case beyond reasonable doubt and prayed for the acquittal of accused on the charges levelled against him. Learned Counsel for the accused referred to the cases and are reported as 'Narender Kumar Vs. State (NCT of Delhi)' II(2012) DLT (CRL.) 619 (SC), 'Sajid @ Salman Vs. State' 2013 (2) JCC 808 and 'Jagmohan Vs. State (GNCT of Delhi) and Ors.' 2013 (3) JCC 2135.
8. While the Learned Addl. PP for the State, on the other hand, submitted that the testimonies of the prosecution witnesses are cogent and consistent and the contradictions and discrepancies as 40 of 127 41 FIR No. 140/10 PS - Bharat Nagar 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.
9. I have heard Sh. D. K. Singh, Learned Addl. PP for the State and Ms. Meena Chaudhary Sharma, Learned Counsel for the accused and have also carefully perused the entire record.
10. The charge for the offences punishable u/s 376/506 IPC against accused Ghanshyam Das Nandwani is that 5/6 months prior to 25/05/2010 at house no. 106, Shakti Apartment, Ashok Vihar, Phase - III, Delhi within the jurisdiction of PS - Bharat Nagar, he committed rape at different times upon the person of prosecutrix (name withheld) and also criminally intimidated her by threatening to kill her and not to disclose about the incident to anyone.
11. It is to be mentioned that as a matter of prudence, in order to avoid any little alteration in the spirit and essence of the depositions of the material witnesses, during the process of appreciation of 41 of 127 42 FIR No. 140/10 PS - Bharat Nagar evidence, at some places, their part of depositions have been reproduced, in the interest of justice.
AGE OF THE PROSECUTRIX
12. 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 there is absence of the matriculation or equivalent certificate; the date of birth certificate from the school (other than a play school) first attended; the birth certificate given by a corporation or a municipal authority or a panchayat of PW18 - prosecutrix as provided under Rule 12 (3)(a)
(i) (ii) and (iii) therefore the medical opinion with respect to PW18 - prosecutrix can be taken into consideration under clause (b) of Rule 12 (3) of Juvenile Justice (Care and Protection of Children) Rules, 2007.
42 of 127 43 FIR No. 140/10 PS - Bharat Nagar Now let the testimony of PW3 - Dr. Shipra Rampal, Radiologist, BJRM Hospital, Delhi, who proved the bone age estimation of PW18 - prosecutrix be perused and analysed.
PW3 - Dr. Shipra Rampal, Radiologist, BJRM Hospital, Delhi who deposed that on 20/08/2010 (Be read as 20/10/2010), she examined XRay Plates of patient/prosecutrix (name withheld) vide MLC No. 16622. After examination the XRay plates of both wrists AP view, both shoulder AP view, both elbow AP view and pelvis AP view, she opined the estimated bone age between 2022 years on that day. Her detailed report is Ex. PW3/A signed by her at point 'A'.
Despite grant of opportunity, PW3 - Dr. Shipra Rampal, Radiologist, BJRM Hospital, Delhi was not crossexamined on behalf of the accused.
In the circumstances, it stands proved that the estimated age of prosecutrix was between 2022 years as on the date of bone age estimation on 20/10/2010.
43 of 127 44 FIR No. 140/10 PS - Bharat Nagar As the date of alleged incident is about 5/6 months prior to 25/05/2010 and the estimated age of the prosecutrix is between 2022 years as on the date of bone age estimation on 20/10/2010, on simple arithmetical calculation, the age of prosecutrix comes to between 2022 years as on the date of incident about 5/6 months prior to 25/05/2010.
In view of above and in the circumstances, it stands established on record that PW18 prosecutrix was aged between 2022 years as on the date of alleged incident about 5/6 months prior to 25/05/2010.
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 44 of 127 45 FIR No. 140/10 PS - Bharat Nagar 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;
(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.
45 of 127 46 FIR No. 140/10 PS - Bharat Nagar 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 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.
(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."
46 of 127 47 FIR No. 140/10 PS - Bharat Nagar 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 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 47 of 127 48 FIR No. 140/10 PS - Bharat Nagar 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
13. PW1 - Dr. J. P. Palyia, CMO, BJRM Hospital, Delhi has deposed that he is deputed by MS in place of Dr. Sumit Arora and Dr. Vikas. Both these Doctors have since left the Hospital and their present whereabouts are not known. He is conversant with the handwriting and signatures of both the Doctors as they worked in the Hospital with him. He can identify their handwriting and signatures. He has seen the MLC of prosecutrix (name withheld) aged 19 years female. She was brought to the Hospital on 25/05/2010 at 2:30 a.m. by SI Raj Bala for medical examination with complaint for 45 months amenhorea (actual date not remembered by the patient). The patient was examined in the casualty by Dr. Sumit Arora. On local examination he found old multiple burn mark over left hand and forearm and old scar mark over dorsal aspect of right hand. Dr. Sumit Arora prepared MLC vide Ex. PW1/B and he referred the patient to S. R. Gynae. He (PW1) identified his signatures at point 'A' on the MLC.
Despite grant of opportunity, PW1 - Dr. J. P. Palyia was not 48 of 127 49 FIR No. 140/10 PS - Bharat Nagar crossexamined on behalf of the accused.
PW4 - Dr. Meenu, SR (Gynae), BJRM Hospital, Delhi has deposed that she has been deputed by the MS of BJRM Hospital on behalf of Dr. Anjali who was working as SR (Gynae) in BJRM Hospital. Dr. Anjali has since left the services of the Hospital. She can identify the handwriting and signatures of Dr. Anjali as she has seen her writing and signing during the course of her official duties. She has seen MLC of Patient/prosecutrix (name withheld). She was brought in the casualty on 25/05/2010 at 2:30 a.m. and examined by CMO Dr. Sumit Arora. She was referred to SR (Gynae) by the CMO in Gynae Department. Dr. Anjali examined the patient. The patient was brought for medical examination by ASI Rajbala with alleged history of sexual assault. According to the patient she had been assaulted by a neighbour for the last six months. Last episode occurred 07 days back. After that she had taken bath and changed clothes. Dr. Anjali examined the patient. As per menstrual history as per the patient, last period was 34 months back, exact date not know. Per abdominal examination - uterus corresponding to 2426 weeks, fetal parts palpable. Local examination 49 of 127 50 FIR No. 140/10 PS - Bharat Nagar
- no visible external injury seen over thigh, perineum. Hymen torn, no erythema, no induration seen, no bleeding or leaking PV. OS closed. Cervix uneffaced. Patient was advised ultrasound, Iron Calcium tablet and injection tetnus. Dr. Anjali made her endorsement on MLC Ex. PW1/B (already exhibited) in red encircled area as PX bearing her signatures at point 'B1'. She identify her handwriting and signatures.
There is nothing in the crossexamination of PW4 - Dr. Meenu so as to impeach her creditworthiness.
PW6 - Dr. Gursharan Lamba, Head of Department of Radiology, Sunder Lal Jain Hospital, Delhi has deposed that on 24/05/2010, one patient (name withheld), 20 years female was referred for antenatal ultrasound examination by Dr. Neerja Dayal Unit vide OPD Card Ex. PW6/A. The ultrasound requisition form is Ex. PW6/B. After duly filling the PNDT Form, he conducted the ultrasound of patient (name withheld) at Sunder Lal Jain Hospital. He prepared his report Ex. PW6/C which bears his signatures at point 'A'. The age of the foetus was 20 weeks plus one day and it was normal report. The sonograph is Ex. PW6/D. 50 of 127 51 FIR No. 140/10 PS - Bharat Nagar Despite grant of opportunity, PW6 - Dr. Gursharan Lamba was not crossexamined on behalf of the accused.
PW20 - Dr. Jyoti Chugh, Consultant, Sunder Lal Jain Hospital, Delhi has deposed that on 24/05/2010, she alongwith Dr. Neerja Dayal and Dr. Aruna Behl were on duty in OPD. On that day, one patient (name withheld) aged about 20 years came in the Hospital and was medically examined by them. As per OPD slip, the history of her period of amenorrhea was 34 months. Patient was unmarried. Examination findings : Per abdomen uterus at 24 weeks, foetal parts pulpable, foetal heart plus regular. Heart and lungs examination was normal. The patient was advised an ultrasound examination, blood tests and an injection of tetanus was advised. They used to give the original OPD card to the patient and they did not keep the copy of the same in their record. The handwriting on the OPD card is of Dr. Aruna Behl who is presently out of India. She is acquainted with the handwriting and signature of Dr. Aruna Behl as she had worked with her. The copy of OPD card is Ex. PW20/A. There is nothing in the crossexamination of PW20 - Dr. 51 of 127 52 FIR No. 140/10 PS - Bharat Nagar Jyoti Chugh so as to impeach her creditworthiness.
In view of above and in the circumstances, the medical/gynaecological examination vide MLC Ex. PW1/B, vide endorsement in red encircled as PX on MLC Ex. PW1/B, Antenatal ultrasound examination vide report Ex. PW6/A and sonograph Ex. PW6/D of PW18 - prosecutrix stands proved on the record. VIRILITY OF ACCUSED GHANSHYAM DAS NANDWANI
14. PW1 - Dr. J. P. Palyia, CMO, BJRM Hospital, Delhi has deposed that he is deputed by MS in place of Dr. Sumit Arora and Dr. Vikas. Both these Doctors have since left the Hospital and their present whereabouts are not known. He is conversant with the handwriting and signatures of both the Doctors as they worked in the Hospital with him. He can identify their handwriting and signatures. On 26/05/2010, patient Ghanshyam Das Nandwani S/o Sh. Ram Kishan aged 66 years male was brought by the Police for medical examination with alleged history of committing sexual assault. He examined the patient. No fresh external injury is seen. He prepared the MLC Ex. PW1/A and 52 of 127 53 FIR No. 140/10 PS - Bharat Nagar patient was referred to S. R. Surgery for further examination. MLC is in his handwriting and bears his signatures at point 'A'. In the Surgery Department the patient was examined by Dr. Vikas, S. R. Surgery. As per his endorsement on Ex. PW1/A, Dr. Vikas examined the patient. His endorsement is from point 'X' to 'X' bearing his signatures at point 'B'. In his opinion there was nothing to suggest that patient was not capable of committing sexual intercourse. Dr. Vikas seized undergarments, blood samples on gauze in the sealed parcels and handed over to SI Raj Bala. Patient refused for semen collection. He (PW1) identified writing and signatures of Dr. Vikas.
Despite grant of opportunity, PW1 - Dr. J. P. Palyia was not crossexamined on behalf of the accused.
In view of above and in the circumstances, it stands proved on the record that accused Ghanshyam Das Nandwani was capable of performing sexual intercourse.
DNA FINGER PRINTING EVIDENCE
15. PW2 - A. K. Srivastava, Asstt. Director (Biology), DNA 53 of 127 54 FIR No. 140/10 PS - Bharat Nagar Unit, FSL, Rohini, Delhi who conducted the DNA Analysis of Ex. 1, of accused Ghanshyam Das, Ex. 2 of the prosecutrix and Ex. 3 of female baby Mani and proved the detailed report in this regard Ex. PW2/A signed by him at point 'A' and further deposed annexure '1A' is the identification form of accused Ghanshyam Das Nandwani Ex. PW2/B signed by him at point 'A': annexure 1B is the identification form of the prosecutrix, Ex. PW2/C signed by him at point 'A' and annexure '1C' is the identification form of baby Mani Ex. PW2/D signed by him at point 'A' and also proved the forwarding letter Ex. PW2/E vide which he forwarded the report to the concerned SHO through Director.
As per DNA Report Ex. PW2/A, the description of the sources, DNA examination, result of examination and conclusion reads as under : DESCRIPTION OF THE SOURCE Blood Samples collected Name of source Collected on Sample Exhibit No. Blood Sample of Sh. Ghanshyam Das 18/10/2010 1 1 Nandwani 54 of 127 55 FIR No. 140/10 PS - Bharat Nagar Identification form No. 1 Blood Sample of prosecutrix (name 18/10/2010 2 2 withheld) Identification form No. 2 Blood Sample of Female Baby Mani 18/10/2010 3 3 Identification form No. 3 DNA from the exhibits '1', '2' & '3' were isolated and DNA fingerprinting profiles were prepared. STR analysis was used for each of the samples. Data was analyzed by using Genescan and Gene Mapper IDX Software.
RESULTS OF EXAMINATION The alleles as from the source of exhibit '1' (Blood sample of Sh. Ghanshyam Das Nandwani) and alleles as from the source of exhibit '2' (Blood sample of prosecutrix (name withheld)) are accounted in alleles as from the source of exhibit '3' (Blood sample of Female Baby Mani).
CONCLUSION The DNA profiling (STR analysis) performed on the exhibits provided is sufficient to conclude that source of exhibit '1' (Blood sample of Sh. Ghanshyam Das Nandwani) and exhibit '2' (Blood sample of prosecutrix 55 of 127 56 FIR No. 140/10 PS - Bharat Nagar (name withheld)) are biological father and mother of the source of exhibit '3' (Blood sample of Female Baby Mani). ENCLOSURES
1. Annexure - IA, IB, IC - Identification Form of exhibit '1', '2' & '3'. Note :
1. The exhibits '1', '2' & '3' were utilized during the examination.
On careful perusal and analysis of DNA Finger Printing Evidence on record, it clearly shows that the alleles as from the source of exhibit '1' (Blood sample of accused Ghanshyam Das Nandwani) and alleles as from the source of exhibit '2' (Blood sample of prosecutrix (name withheld)) are accounted in alleles as from the source of exhibit '3' (Blood sample of Female Baby Mani born to the prosecutrix) and the DNA profiling (STR analysis) performed on the said exhibits is sufficient to conclude that source of exhibit '1' (Blood sample of accused Ghanshyam Das Nandwani) and exhibit '2' (Blood sample of prosecutrix (name withheld)) are biological father and mother of the source of exhibit '3' (Blood sample of Female Baby Mani born to the prosecutrix).
56 of 127 57 FIR No. 140/10 PS - Bharat Nagar On a conjoint reading of the medical/gynaecological examination vide MLC Ex. PW1/B, vide endorsement in red encircled as PX on MLC Ex. PW1/B, Antenatal ultrasound examination vide report Ex. PW6/A and sonograph Ex. PW6/D of PW18 - prosecutrix in the light of the DNA Report Ex. PW2/A, it clearly indicates that after the committal of the sexual intercourse upon the prosecutrix by accused Ghanshyam Das Nandwani, she became pregnant and delivered a female baby whereby the genes were inherited by the new born baby from accused Ghanshyam Das Nandwani during the process of fertilization of ovum of the prosecutrix by the sperm released by accused Ghanshyam Das Nandwani.
In the circumstances, it stands clearly established on the record that accused Ghanshyam Das Nandwani committed sexual intercourse upon the prosecutrix by complete penetration of penis with the emission of semen resulting in the fertilization of the ovum of the prosecutrix with the sperm of accused Ghanshyam Das Nandwani resulting in her pregnancy and delivery of the female baby and of the inheritance of the genes from accused Ghanshyam 57 of 127 58 FIR No. 140/10 PS - Bharat Nagar Das Nandwani thereby he (accused Ghanshyam Das Nandwani) is the biological father of the female baby born to the prosecutrix.
As per the DNA Report Ex. PW2/A, prosecution has discharged its initial burden of proving the accused as the biological father of the female baby born to the prosecutrix.
Moreover, during his statement recorded u/s 313 Cr.P.C. accused Ghanshyam Das Nandwani has admitted that he had sexual relations with the prosecutrix. The relevant part of the statement of accused Ghanshyam Das Nandwani recorded u/s 313 Cr.P.C. reads as under : "Q24. Why PWs have deposed against you?
Ans. They have falsely deposed against me. The girl/prosecutrix (name withheld) on her own will and pleasure used to come to meet me after the death of my wife in the year, 2009. she, in the early hours of morning or late night, used to voluntarily come to meet me and we developed friendly relations. She showed extra sympathy towards me and we developed consensual sexual relations with each other....."
"She used to come in the night time by crossing her back
58 of 127 59 FIR No. 140/10 PS - Bharat Nagar gate by jumping the grill of her employer's flat. I used to tell her not to ring my bell so late but she insisted that she and I make/continue the sexual relations with each other. This continued for one year but only when her employer found out that she was pregnant, the girl made false allegations of rape and threat against me....."
It is also to be noticed that during the crossexamination of PW18 - prosecutrix, accused has also not denied of having physical relationship with the prosecutrix when it was suggested to her that she is a consenting party in the physical relationship between her and the accused Ghanshyam, which she negated.
The relevant part of the crossexamination of PW18 - prosecutrix is reproduced and reads as under : "It is wrong to suggest that accused Ghanshyam has not committed rape upon me or that I am a consenting party in the physical relationship between me and accused Ghanshyam or that accused Ghanshyam never threatened me with my life or getting me thrown out of my employment."
16. Now let the testimony of PW18 - Prosecutrix be perused and analysed.
59 of 127 60 FIR No. 140/10 PS - Bharat Nagar PW18 prosecutrix, in her examinationinchief has deposed which is reproduced and reads as under : "I was working in Delhi in Ashok Vihar in house of Nirmla Aunty and I worked for about 1½ years in the house of Nirmla Aunty. I know Ghanshyam as he was living there. I can identify Ghanshyam, if shown to me.
At this stage the wooden partition is removed. The witness pointed towards the accused Ghanshyam and identified him correctly.
At this stage the wooden partition is restored to its original position.
The House No. of Nirmla Aunty was 108. The House No. of Ghanshyam was 106. The daughter of Nirmla Aunty was also living in the neighbourhood of Nirmla Aunty and her name was Rajni. I was also visiting the house of Rajni. In the noon time when all were sleeping, Ghanshyam Uncle after dragging/pulling me took me to his room (Ghanshyam Uncle mujhe kheech kar apne kamre me lay gaye) and committed 'Balatkaar' with me (Balatkaar kiya) and he also threatened me to kill and also threatened to get me out from my employment (mujhe meri nokari se nikalwa dega). I did not disclose the said incident to any one. The incident pertains to about three years back. I do not recollect the date, month and year. After about three days of the said incident, he again dragged me into his room (Teen din baad phir mujhe kheech kar apne kamre me ley gai) and committed 'Balatkaar' upon me. At that time also I was made fearful by him (Us time bhi mujhe dara diya tha) so I did not disclose the incident to any one. Thereafter, many times he committed rape (Balatkaar) upon me. After 60 of 127 61 FIR No. 140/10 PS - Bharat Nagar about 14 days I had pain in my stomach (Chhoda din baad mere pait mai dard hua). I told about my stomach pain to Nirmla Aunty and thereafter I had also told about my stomach pain to Rajni, daughter of Nirmla Aunty and she (Rajni) took me to the hospital. In the hospital it was told that I have a child in my stomach (pata chla mere pait me baccha hai). Thereafter, I was left at Naari Niketan by Nirmla Aunty. Police was telephoned by Nirmla Aunty. Police came at the house of Nirmla Aunty. My statement was recorded by the police. I had put my thumb impression on my statement made to the police. The Thumb impression on statement shown to me at point A is mine. The statement is Ex. PW18/A. Police had taken me to hospital. My medical examination was also conducted. My statement u/s 164 Cr.P.C. was also got recorded which is Ex. PW17/B, bearing my thumb impression at point B. I gave birth to a female baby child at Deen Dayal Upadyay Hospital, Delhi. The coloured photo affixed on the left top corner encircled at point 'X' is of my female baby child, on DNA Fingerprinting Identification Form Ex. PW2/D."
From the aforesaid narration of PW18 - prosecutrix, it is clear that she was working in Delhi in Ashok Vihar in house of Nirmla Aunty and she worked for about 1½ years in the house of Nirmla Aunty. She knows Ghanshyam as he was living there. She correctly identified accused Ghanshyam in the Court. The House No. of Nirmla Aunty was
108. The House No. of Ghanshyam was 106. The daughter of Nirmla Aunty was also living in the neighbourhood of Nirmla Aunty and her 61 of 127 62 FIR No. 140/10 PS - Bharat Nagar name was Rajni. She was also visiting the house of Rajni. In the noon time when all were sleeping, Ghanshyam Uncle after dragging/pulling her took her to his room (Ghanshyam Uncle mujhe kheech kar apne kamre me lay gaye) and committed 'Balatkaar' with her (Balatkaar kiya) and he also threatened her to kill and also threatened to get her out from her employment (mujhe meri nokari se nikalwa dega). She did not disclose the said incident to any one. The incident pertains to about three years back. She does not recollect the date, month and year. After about three days of the said incident, he again dragged her into his room (Teen din baad phir mujhe kheech kar apne kamre me ley gai) and committed 'Balatkaar' upon her. At that time also she was made fearful by him (Us time bhi mujhe dara diya tha) so she did not disclose the incident to any one. Thereafter, many times he committed rape (Balatkaar) upon her. After about 14 days she had pain in her stomach (Chhoda din baad mere pait mai dard hua). She told about her stomach pain to Nirmla Aunty and thereafter she had also told about her stomach pain to Rajni, daughter of Nirmla Aunty and she (Rajni) took her to the Hospital. In the Hospital it was told that she has a child in her stomach (pata chla mere pait me baccha hai). Thereafter, she was left at Naari 62 of 127 63 FIR No. 140/10 PS - Bharat Nagar Niketan by Nirmla Aunty. Police was telephoned by Nirmla Aunty. Police came at the house of Nirmla Aunty. Her statement was recorded by the Police. She had put her thumb impression on her statement made to the Police. The Thumb impression on statement shown to her at point 'A' is her. The statement is Ex. PW18/A. Police had taken her to Hospital. Her medical examination was also conducted. Her statement u/s 164 Cr.P.C. was also got recorded which is Ex. PW17/B, bearing her thumb impression at point 'B'. She gave birth to a female baby child at Deen Dayal Upadyay Hospital, Delhi. The coloured photo affixed on the left top corner encircled at point 'X' is of her female baby child, on DNA Fingerprinting Identification Form Ex. PW2/D. PW18 - Prosecutrix during her crossexamination has negated the suggestions that she was going to house of Ghanshyam during the period when his wife was alive or that during the period when the wife of Ghanshyam was alive, he used to talk to her while coming and going on the way (Chalte phirte hue) or that she was not dragged/pulled by Ghanshyam into his house or that she of her own had gone into the house of Ghanshyam or that she had gone to the house of Ghanshyam on his calling when Nirmla Aunty was sleeping or that she 63 of 127 64 FIR No. 140/10 PS - Bharat Nagar used to go of her own to meet Ghanshyam Uncle stealthily (chori chori Chupke Chupke) after 10:00 p.m. after Nirmla Aunty had gone for sleeping or that she is deposing falsely that any Balatkaar was committed upon her by uncle Ghanshyam or that she used to meet uncle Ghanshyam in the night after jumping the grill of house of Nirmla Aunty as the house was locked and she was also kept under locking or that she had fled from the house of Nirmla Aunty in the night time or that she was caught by the Chowkidar or neighbouring people or that when she was put under lock and key by Nirmla Aunty, she used to jump and slip out from the grill on the backside of the house of Nirmla Aunty or that accused Ghanshyam has not committed rape upon her or that she is a consenting party in the physical relationship between herself and accused Ghanshyam or that accused Ghanshyam never threatened her with her life or getting her thrown out of her employment or that she had cooked up a false story of accused Ghanshyam having told her that he will get her talk on telephone to her family in the village or that sometimes she used to leave her personal belongings in the house of accused Ghanshyam saying to him that she will lift up the same later on or that sometimes the servant of accused Ghanshyam had opened the 64 of 127 65 FIR No. 140/10 PS - Bharat Nagar door of his house when she had pressed the call bell in the night or that accused Ghanshyam used to give money to her to help her or that no rape was committed upon her by accused Ghanshyam Das or that accused Ghanshyam Das has been falsely implicated on charges of rape by lodging an FIR at the instance of Nirmla Aunty, her daughter Rajni Didi and husband of Rajni Didi or that she is deposing falsely.
The testimony of PW18 - Prosecutrix on careful perusal and analysis is found to be clear, natural, cogent, convincing, trustworthy and inspiring confidence. Inspite of incisive crossexamination pf PW18
- 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 crossexamination and her testimony is consistent throughout. 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 PW18 - Prosecutrix is also found to be corroborated by the medical/gynaecological evidence as well as the 65 of 127 66 FIR No. 140/10 PS - Bharat Nagar DNA Report as discussed hereinbefore. The testimony of PW18 - Prosecutrix is also found to be in consonance with her statement Ex. PW18/A made to the Police.
The testimony of PW18 Prosecutrix is also found to be corroborated in material particulars by the testimonies of PW5 - Ms. Rajni Kohli and PW8 - Smt. Nirmala Nayyar to whom PW18 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.
PW5 - Ms. Rajni Kohli in her examinationinchief has deposed that : "My mother Nirmala Nayyar resides at Flat No. 108, Shakti Apartment. It is situated in the next plot near my flat. There was a made (maid) servant namely prosecutrix (name withheld) aged about 19 years. On 23/05/2010 she told that she was having some pain in her abdomen then my mother called me. She told that she was not having periods since 45 months. Since on 23/05/2010 it was Sunday thats why I did not get her to the Doctor. On 24/05/2010 I had taken prosecutrix (name withheld) to Sunder Lal Jain Hospital in the morning. After examination doctor told that she is having pregnancy of five months. Her ultrasound was also taken. She was asked about the pregnancy and 66 of 127 67 FIR No. 140/10 PS - Bharat Nagar she told that the uncle who resides in flat no. 106, Shakti Apartment called her and did the same and he used to call her in his flat then we informed to the Police on 100 number. IO recorded my statement. I identify the accused Ghanshyam Das present in the Court today who used to reside in flat no. 106, Shakti Apartment.
Prosecutrix (name withheld) was got kept as maid servant by my brother who resides at Asik Vihar. Prosecutrix (name withheld) was appointed through Red Rose Placement Agency, Punjabi Bagh for a sum of monthly salary Rs. 1,500/ because my mother having ill health and she is unable to walk properly. I handed over treatment papers and ultrasound report of prosecutrix (name withheld) to their (the) IO. I identify photocopy of treatment & ultrasound recorded of prosecutrix (name withheld). The same is mark PW5/A and B. IO recorded my statement."
From the aforesaid narration of PW5 - Ms. Rajni Kohli, it is clearly indicated that her mother Nirmala Nayyar resides at Flat No. 108, Shakti Apartment. It is situated in the next plot near her flat. There was a maid servant namely prosecutrix (name withheld) aged about 19 years. On 23/05/2010 she told that she was having some pain in her abdomen then her mother called her. She (prosecutrix) told that she (prosecutrix) was not having periods since 45 months. Since on 23/05/2010 it was Sunday that's why she did not get her to the Doctor. On 24/05/2010 she had taken prosecutrix (name withheld) to Sunder Lal Jain Hospital in the 67 of 127 68 FIR No. 140/10 PS - Bharat Nagar morning. After examination Doctor told that she is having pregnancy of five months. Her ultrasound was also taken. She was asked about the pregnancy and she told that the uncle who resides in flat no. 106, Shakti Apartment called her and did the same and he used to call her in his flat then they informed to the Police on 100 number. IO recorded her statement. She identify the accused Ghanshyam Das present in the Court who used to reside in flat no. 106, Shakti Apartment. Prosecutrix (name withheld) was got kept as maid servant by her brother who resides at Asik (Ashok) Vihar. Prosecutrix (name withheld) was appointed through Red Rose Placement Agency, Punjabi Bagh for a sum of monthly salary Rs. 1,500/ because her mother having ill health and she is unable to walk properly. She handed over treatment papers and ultrasound report of prosecutrix (name withheld) to the IO. She identify photocopy of treatment & ultrasound recorded of prosecutrix (name withheld). The same is mark PW5/A and B. IO recorded her statement.
During her crossexamination PW5 - Ms. Rajni Kohli has negated the suggestions that IO SI Raj Bala did not came at her house and recorded her statement on 24/05/2010 or that from the window of her kitchen, house of her mother is visible or that on the way to the 68 of 127 69 FIR No. 140/10 PS - Bharat Nagar house of her mother from her house, the house of her mother is situated or that one can easily see inside the house of the accused through window as it is three side open or that she also engaged Counsel Sh. R. K. Anand or that victim/prosecutrix (name withheld) was working with her mother for the last four years prior to the incident or that prosecutrix (name withheld) used to come to her house for working.
PW8 - Smt. Nirmala Nayyar in her examinationinchief has deposed that : "I had a maid by the name of prosecutrix (name withheld) who was working at my house since about 22 and a half years. I do not remember the date, month or year, one day prosecutrix (name withheld) told me that she was having pain in her stomach. Since I was living alone, I called my daughter Rajni. She took her to Sunder Lal Jain Hospital where she was examined and it was found that she was pregnant. I then informed the Police. My children had arranged the maid/prosecutrix (name withheld) from an agency at Punjabi Bagh but I do not know the name of the agency. Her monthly salary was Rs. 1,500/. I do not know how prosecutrix (name withheld) had become pregnant."
This witness was crossexamined by the Learned Addl. PP for the State as her testimony was not in complete consonance with her 69 of 127 70 FIR No. 140/10 PS - Bharat Nagar previous statement during which she deposed that : "I cannot say that the date on which prosecutrix (name withheld) had complained of pain in her stomach was 23/05/2010 (Confronted with portion 'A' to 'A' of statement Mark PW8/A where the date if mentioned as 23/05/2010. It is wrong to suggest that prosecutrix (name withheld) was working since last about one and a half years prior to the said date (Confronted with portion 'B' to 'B' of the statement Mark PW8/A where it is mentioned that she was working in the house since about one and a half years). It is correct that Rajni had taken prosecutrix (name withheld) to Sunder Lal Jain Hospital on 24/05/2010. I did not tell the Police that accused Ghanshyam Das Nandwani, now present in Court (correctly identified) resided in my neighbourhood in house no. 106, Shakti Apartments performed Galat Kaam with prosecutrix (name withheld) (Confronted with portion 'A' to 'A' of statement Mark PW8/B (Vol.) prosecutrix (name withheld) herself said so)."
From the aforesaid narration of PW8 - Smt. Nirmala Nayyar, it is clearly indicated that she had a maid by the name of prosecutrix (name withheld) who was working at her house since about 22 and a half years. She does not remember the date, month or year, one day prosecutrix (name withheld) told her that she was having pain in her stomach. Since she (PW8) was living alone, she called her daughter Rajni. She took her to Sunder Lal Jain Hospital where she was examined and it was found that she was pregnant. She then informed the 70 of 127 71 FIR No. 140/10 PS - Bharat Nagar Police. Her children had arranged the maid/prosecutrix (name withheld) from an agency at Punjabi Bagh but she does not know the name of the agency. Her monthly salary was Rs. 1,500/. She does not know how prosecutrix (name withheld) had become pregnant.
There is nothing in the crossexamination of PW5 - Ms. Rajni Kohli and PW8 - Smt. Nirmala Nayyar so as to impeach their creditworthiness. They have withstood the rigors of crossexamination without being shaken. Their testimonies on careful perusal and analysis are found to be natural, 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.
17. While analysing the testimonies of PW18 - Prosecutrix, PW5 - Ms. Rajni Kohli and PW8 - Smt. Nirmala Nayyar as discussed hereinabove inspite of incisive crossexamination of PW18 - Prosecutrix, PW5 - Ms. Rajni Kohli and PW8 - Smt. Nirmala Nayyar nothing has come out in their statements which may throw even a slightest doubt on the prosecution version of the incident. Though the 71 of 127 72 FIR No. 140/10 PS - Bharat Nagar suggestion by the defence to PW18 Prosecutrix that she was going to house of Ghanshyam during the period when his wife was alive or that during the period when the wife of Ghanshyam was alive, he used to talk to her while coming and going on the way (Chalte phirte hue) or that she was not dragged/pulled by Ghanshyam into his house or that she of her own had gone into the house of Ghanshyam or that she had gone to the house of Ghanshyam on his calling when Nirmala Aunty was sleeping or that she used to go of her own to meet Ghanshyam Uncle stealthily (chori chori Chupke Chupke) after 10:00 p.m. after Nirmala Aunty had gone for sleeping or that she is deposing falsely that any Balatkaar was committed upon her by uncle Ghanshyam or that she used to meet uncle Ghanshyam in the night after jumping the grill of house of Nirmala Aunty as the house was locked and she was also kept under locking or that she had fled from the house of Nirmala Aunty in the night time or that she was caught by the Chowkidar or neighbouring people or that when she was put under lock and key by Nirmala Aunty, she used to jump and slip out from the grill on the backside of the house of Nirmala Aunty or that accused Ghanshyam has not committed rape upon her or that she is a consenting party in the physical relationship between herself 72 of 127 73 FIR No. 140/10 PS - Bharat Nagar and accused Ghanshyam or that accused Ghanshyam never threatened her with her life or getting her thrown out of her employment or that she had cooked up a false story of accused Ghanshyam having told her that he will get her talk on telephone to her family in the village or that sometimes she used to leave her personal belongings in the house of accused Ghanshyam saying to him that she will lift up the same later on or that sometimes the servant of accused Ghanshyam had opened the door of his house when she had pressed the call bell in the night or that accused Ghanshyam used to give money to her to help her or that no rape was committed upon her by accused Ghanshyam Das or that accused Ghanshyam Das has been falsely implicated on charges of rape by lodging an FIR at the instance of Nirmala Aunty, her daughter Rajni Didi and husband of Rajni Didi or that she is deposing falsely and the suggestions to PW5 - Ms. Rajni Kohli that IO SI Raj Bala did not came at her house and recorded her statement on 24/05/2010 or that from the window of her kitchen, house of her mother is visible or that on the way to the house of her mother from her house, the house of her mother is situated or that one can easily see inside the house of the accused through window as it is three side open or that she also engaged 73 of 127 74 FIR No. 140/10 PS - Bharat Nagar Counsel Sh. R. K. Anand or that victim/prosecutrix (name withheld) was working with her mother for the last four years prior to the incident or that prosecutrix (name withheld) used to come to her house for working, 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.
However, a futile attempt has been made by the accused to save his skin from the clutches of law by way of examination of three defence witness namely DW1 - Smt. Shanti Devi W/o Ram Chander, Age - 50 years, R/o B - 897, Holambi Kalan, Delhi, DW2 - Sh. Sanjay Gera S/o I. D. Gera, Age - 47 years, R/o C8/181, Sector - 8, Rohini, Delhi and DW3 - Ms. Charu W/o Mahender Verma, Age - 51 years, R/o 19/42, Sector - 16, Rohini, Delhi.
DW1 - Smt. Shanti Devi W/o Ram Chander, Age - 50 years, R/o B - 897, Holambi Kalan, Delhi in her examinationinchief has deposed that : 74 of 127 75 FIR No. 140/10 PS - Bharat Nagar "I use to live on the above mentioned address. I do the house hold work. I do not know anything about the present case. I used to come at 8.00 am and used to left the house at about 9/9.15 am. Accused also used to left the house till that time. No one used to come in my presence in the house. I regularly used to come on my work. No one was residing with the accused."
During her crossexamination DW1 - Smt. Shanti Devi has deposed that : "I used to remain in the house of accused Ghanshyam Das till 9:15 am in the morning and I do not know who used to come at the house of Ghanshyam Das thereafter during day. I used to take leave whenever it was required for some work. I have worked at the house of accused for about 18 years. I was having very good relations with accused and his family. I have been asked to depose in the court by accused Ghanshyam Das and his children. It is wrong to suggest that I have been tutored to depose in favour of accused Ghanshyam Das in order to create a false defence."
DW2 - Sh. Sanjay Gera in his examinationinchief has deposed that : "I am doing the works of accounts in Sadar Bazar at the shop of Ghanshyam Das Nandwani. He used to come at the shop in the morning at about 10/10.15 am and he used to close the shop in the evening at around 7.30/7.45 pm. He never used to go from the shop during that hours. I know about the present case. I alongwith 2/3 75 of 127 76 FIR No. 140/10 PS - Bharat Nagar persons had gone to PS Bharat Nagar and PS Ashok Vihar after the arrest of the accused. Police had not recorded my statement. Police told me that they will call me when needs required but they did not call me."
During his crossexamination DW2 - Sh. Sanjay Gera has deposed that : "I know accused Ghanshyam Das Nandwani for the last 17/18 Years and I am working at his shop since then. I am getting salary of Rs. 20,000/. I am not having any appointment letter or any documentary proof that I am working at the shop of accused Ghanshyam Das Nandwani. Accused Ghanshyam Das Nandwani is doing the business of glassware crockery at the shop. There are seven employees at the shop of accused. Whenever need arise I used to take leave. Whenever I have any work I also used to go from the shop during the working hours. Sh. Ghanshyam Das Nandwani is the owner of the shop and he is responsible for all the work in the shop. It is a retail shop. Any worker present in the shop may open the shop. In the absence of accused Ghanshyam Das his son Sumit Khaneja to whom he had given in adoption to some one in his relation, look after the work of the shop. In the absence of Ghanshyam Das Nandwani his above said son Sumit Khaneja used to keep the key of the shop. I have come in the court to depose at the instance of accused. Accused Ghanshyam Das Nandwani used to remain absent from the shop whenever need arise. Accused Ghanshyam Das Nandwani also used to go from the shop during the working hours if the need arise. It is wrong to suggest that I am deposing falsely to save the accused and I have been tutored to depose in his favour in order to create a false defence. It is wrong to suggest that I 76 of 127 77 FIR No. 140/10 PS - Bharat Nagar am deposing falsely."
DW3 - Ms. Charu in her examinationinchief has deposed that : "Accused Ghanshyam Das Nandvani is my brotherinlaw (Jija) in relation. I used to go at the house of Ghanshyam Das on Sunday to Sunday. I used to go at the house of Ghanshyam Das to look after his house hold work (ghar ka kaam). I used to go at the house of Ghanshyam Das at around 9:30/9:45 a.m. and remained there till 9:30/9:45 p.m. In the morning after taking the breakfast, Sh. Ghanshyam Das used to left the house for park etc. and used to come in the evening at about 6:30 pm. No one used to come to meet Ghanshyam Das during the day, one maid who was residing in the neighbourhood used to come in the house of Ghanshyam Das Nandwani for keeping polythene etc. (polythene vagera rakhne ke liye aati thi). I had seen her only once or twice at the house of Ghanshyam Das Nandwani. I do not remember the time when the maid had come to the house of Ghanshyam Das Nandwani."
During her crossexamination DW3 - Ms. Charu has deposed that : "My sister Mrs. Pushpa Nandwani has since been expired so my brotherinlaw i.e accused Ghanshyam Das Nandwani is living alone in the house. My sister Pushpa was expired in December, 2008. I was going to the house of accused since October, 2008 when my sister was ill. The maid from the neighbour used to come to house of accused once 77 of 127 78 FIR No. 140/10 PS - Bharat Nagar or twice ("kabhi kabhar"). I used to come to the house of accused only on Sunday. Accused Ghanshyam Das Nandwani was not having any quarrel with any neighbourer ("padosiyo se koi jhagra nahi tha"). Ghanshyam Das Nandwani was not having any enmity with anyone. Ghanshyam Das Nandwani used to come in the room for rest occasionally on the Sunday when I used to go there. Ghanshyam Das Nandwani is my real jija. I am coming to the Court on each and every day of the hearing. It is wrong to suggest that I have been tutored to depose in order to save accused Ghanshyam Das Nandwani as he is my jija. It is wrong to suggest that I am deposing falsely."
On careful perusal and analysis of the testimonies of DW1 - Smt. Shanti Devi, maid servant, DW2 - Sh. Sanjay Gera, Accountant at the shop of accused and DW3 - Ms. Charu, sisterin law (Sali) of the accused, it is found that they are well known of accused Ghanshyam Das Nandwani. It is not made clear by the Learned Counsel for the accused as to what benefit she intends to reap from the testimonies of the said defence witnesses and as to how and in what manner it advances the defence of the accused and come to the rescue of the accused. DW1 - Smt. Shanti Devi during her examinationinchief has specifically deposed that "I do not know anything about the present case". DW1 - Smt. Shanti Devi 78 of 127 79 FIR No. 140/10 PS - Bharat Nagar during her crossexamination has categorically deposed that she has been asked to depose in the Court by accused Ghanshyam Das Nandwani and his children.
DW2 - Sh. Sanjay Gera during his crossexamination has specifically deposed that he has come to the Court to depose at the instance of the accused.
In the circumstances, it clearly indicates that DW1 - Smt. Shanti Devi and DW2 - Sh. Sanjay Gera are the procured witnesses and their testimonies do not inspire confidence.
DW2 - Sh. Sanjay Gera, who is the Accountant of the accused, during his examinationinchief has deposed that "I alongwith 2/3 persons had gone to PS Bharat Nagar and PS Ashok Vihar after the arrest of the accused. Police had not recorded my statement. Police told me that they will call me when needs required but they did not call me."
It is not made clear by the Learned Counsel for the accused as to what benefit she intends to reap from the said part of examination 79 of 127 80 FIR No. 140/10 PS - Bharat Nagar inchief of DW2 - Sh. Sanjay Gera. If in the estimation of DW2 - Sh. Sanjay Gera, his employer/accused Ghanshyam Das Nandwani was falsely implicated and arrested in the case and Police was not recording his (DW2) statement, why DW2 - Sh. Sanjay Gera did not make any complaint against the alleged false implication of accused Ghanshyam Das Nandwani to the Police/Senior Police officer or to any Court, the reasons for the same must be known to him. It clearly indicates that, Had accused Ghanshyam Das Nandwani been falsely implicated in the case, DW2 - Sh. Sanjay Gera, his employee must have made the complaint to Police/Senior Police officer or any Court against his false implication.
During her examinationinchief DW3 - Ms. Charu has floated a theory that, "one maid who was residing in the neighbourhood used to come in the house of Ghanshyam Das Nandwani for keeping polythene etc. (polythene vagera rakhne ke liye aati thi)" but the said theory so propounded not only being vague, has also not at all being made probable, much established by any cogent evidence. Nor it has been explained by the Learned Counsel for the 80 of 127 81 FIR No. 140/10 PS - Bharat Nagar accused as to what benefit she intends to reap from the said theory so propounded by DW3 - Ms. Charu. Moreover, the said theory so propounded has been destroyed by DW3 - Ms. Charu herself when she deposed in her examinationinchief "I had seen her only once or twice at the house of Ghanshyam Das Nandwani. I do not remember the time when the maid had come to the house of Ghanshyam Das Nandwani." Nor any suggestion regarding the said theory was put to PW18 - prosecutrix during her incisive and lengthy crossexamination. Nor even a single word regarding the said theory, so propounded, was uttered by the accused during his statement recorded u/s 313 Cr.P.C. In the circumstances, the said theory, so floated, is merely an afterthought and the testimony of DW3 - Ms. Charu does not inspire confidence and she is a procured witness.
18. It is well settled that rape, is crime and not a medical condition. Rape is a legal term and not a diagnosis to be made by the medical officer treating the victim.
It is to be noticed that the opinion expressed by Modi in 81 of 127 82 FIR No. 140/10 PS - Bharat Nagar 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."
In Encyclopedia of Crime and Justice (Vol. 4) at page 82 of 127 83 FIR No. 140/10 PS - Bharat Nagar 1356, it is stated : ".....even slight penetration is sufficient and emission is unnecessary."
On analysing the testimony of PW18 - Prosecutrix in the light of medical evidence, DNA Finger Printing evidence, gynaecological examination as was conducted by Dr. Anjali in red encircled area 'PX' on the MLC Ex. PW1/B of the prosecutrix, medical examination of the prosecutrix as was conducted by Dr. Sumit Arora vide MLC Ex. PW1/B together with the MLC of accused Ghanshyam Das Nandwani Ex. PW1/A, as discussed hereinbefore, the act of performing of sexual intercourse activity by complete penetration of the penis with emission of semen or by partial penetration of the penis with emission of semen, within the labia majora or the vulva or pudenda stands proved consequent upon which pregnancy occurred resulting in the delivery of a baby.
In the circumstances, it stands clearly established on the record, of the performance of the act of sexual intercourse by accused Ghanshyam Das Nandwani with PW18 - Prosecutrix 83 of 127 84 FIR No. 140/10 PS - Bharat Nagar without her consent, whereupon PW18 - Prosecutrix became pregnant and delivered a baby whose DNA profiling matched with accused Ghanshyam Das Nandwani as a Biological Father.
19. Learned Counsel for the accused submitted that PW18 - prosecutrix has cooked up an improved version of the alleged incident of rape. There is a completely different story floated by her which was not her story in her statement to the Police. The story fabricated and weaved by the prosecutrix is completely contrary to her FIR as well as her statement u/s 164 Cr.P.C. She contradicts her own statement made to the Police as well as the Learned MM regarding the manner and reason in which she had gone in the house of the accused. He further submitted that the prosecutrix is fully tutored. She is a grown up major lady of 22 years and is not a reliable witness.
I have carefully perused and analysed the evidence on record.
The testimony of PW18 prosecutrix has been reproduced, discussed and analysed hereinbefore. At the cost of repetition, the 84 of 127 85 FIR No. 140/10 PS - Bharat Nagar testimony of PW18 prosecutrix has been found to be clear, natural, cogent, convincing and inspiring confidence. There is nothing in her statement to suggest that she had any animus against the accused to falsely implicate him in the case.
At the cost of repetition, PW18 - prosecutrix has deposed in her examinationinchief which is reproduced and reads as under : "I was working in Delhi in Ashok Vihar in house of Nirmla Aunty and I worked for about 1½ years in the house of Nirmla Aunty. I know Ghanshyam as he was living there. I can identify Ghanshyam, if shown to me.
At this stage the wooden partition is removed. The witness pointed towards the accused Ghanshyam and identified him correctly.
At this stage the wooden partition is restored to its original position.
The House No. of Nirmla Aunty was 108. The House No. of Ghanshyam was 106. The daughter of Nirmla Aunty was also living in the neighbourhood of Nirmla Aunty and her name was Rajni. I was also visiting the house of Rajni. In the noon time when all were sleeping, Ghanshyam Uncle after dragging/pulling me took me to his room (Ghanshyam Uncle mujhe kheech kar apne kamre me lay gaye) and committed 'Balatkaar' with me (Balatkaar kiya) and he also threatened me to kill and also threatened to get me out from my employment (mujhe meri nokari se nikalwa dega). I did not disclose the said incident to any one. The incident pertains to about three years back.
85 of 127 86 FIR No. 140/10 PS - Bharat Nagar I do not recollect the date, month and year. After about three days of the said incident, he again dragged me into his room (Teen din baad phir mujhe kheech kar apne kamre me ley gai) and committed 'Balatkaar' upon me. At that time also I was made fearful by him (Us time bhi mujhe dara diya tha) so I did not disclose the incident to any one. Thereafter, many times he committed rape (Balatkaar) upon me. After about 14 days I had pain in my stomach (Chhoda din baad mere pait mai dard hua). I told about my stomach pain to Nirmla Aunty and thereafter I had also told about my stomach pain to Rajni, daughter of Nirmla Aunty and she (Rajni) took me to the hospital. In the hospital it was told that I have a child in my stomach (pata chla mere pait me baccha hai). Thereafter, I was left at Naari Niketan by Nirmla Aunty. Police was telephoned by Nirmla Aunty. Police came at the house of Nirmla Aunty. My statement was recorded by the police. I had put my thumb impression on my statement made to the police. The Thumb impression on statement shown to me at point A is mine. The statement is Ex. PW18/A. Police had taken me to hospital. My medical examination was also conducted. My statement u/s 164 Cr.P.C. was also got recorded which is Ex. PW17/B, bearing my thumb impression at point B. I gave birth to a female baby child at Deen Dayal Upadyay Hospital, Delhi. The coloured photo affixed on the left top corner encircled at point 'X' is of my female baby child, on DNA Fingerprinting Identification Form Ex. PW2/D."
On analysing the entire testimony of PW18 - prosecutrix, it transpires that she has described the scenario implicating the accused to be author of the crime, of the committal of the sexual assaults upon her.
86 of 127 87 FIR No. 140/10 PS - Bharat Nagar Accused has failed to elicit any material or relevant discrepancies or inconsistencies despite her searching crossexamination. The witness has made some improvements and deposed certain facts which were not stated in the statements to the Police Ex. PW18/A or u/s 164 Cr.P.C. Ex. PW17/B. However, those facts deposed by her do not affect her credibility as these are mere the details of the incident or of some collateral or subsidiary facts which the witness could not reasonably disclose in the statements to the Police Ex. PW18/A or u/s 164 Cr.P.C. Ex. PW17/B. In fact, so called improvements are the 'clarifications' or 'elaboration' of facts in response to the questions put to her which she was not supposed to state in the statement to the Police Ex. PW18/A or u/s 164 Cr.P.C. Ex. PW17/B. The core facts about the committal of the crime by the accused remained intact.
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 87 of 127 88 FIR No. 140/10 PS - Bharat Nagar 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.....".
In the circumstances, there is no substance in the plea so raised by the Learned Counsel for the accused.
20. Learned Counsel for the accused submitted that FIR reveals that since the prosecutrix was exposed because of her pregnancy, she levelled allegations of rape against the accused. Had she not been pregnant, she would never made the FIR. This fact is corroborated and confirmed by the prosecutrix in her statement when a question was put to her in this regard which is as follows : "Q. Is it correct that when your ultrasound was conducted and Doctors revealed that you were pregnant, then only you alleged that Ghanshyam was the father of the child?
Ans. Yes. It is correct."
88 of 127 89 FIR No. 140/10 PS - Bharat Nagar I have carefully perused and analysed the evidence on record.
The testimony of PW18 prosecutrix has been reproduced, discussed and analysed hereinbefore. At the cost of repetition, the testimony of PW18 prosecutrix has been found to be clear, natural, cogent, convincing and inspiring confidence. There is nothing in her statement to suggest that she had any animus against the accused to falsely implicate him in the case.
It is not made clear by the Learned Counsel for the accused as to what she intends to convey and as to what benefit she intends to reap by raising the said plea. With due respect, it appears that the Learned Counsel for the accused has either misread the evidence or has not read the evidence on the record.
At the cost of repetition, PW18 - prosecutrix has deposed in her examinationinchief which is reproduced and reads as under : "I was working in Delhi in Ashok Vihar in house of Nirmla Aunty and I worked for about 1½ years in the house of Nirmla Aunty. I know Ghanshyam as he was living there. I can identify Ghanshyam, if shown to me.
At this stage the wooden partition is removed. The witness 89 of 127 90 FIR No. 140/10 PS - Bharat Nagar pointed towards the accused Ghanshyam and identified him correctly.
At this stage the wooden partition is restored to its original position.
The House No. of Nirmla Aunty was 108. The House No. of Ghanshyam was 106. The daughter of Nirmla Aunty was also living in the neighbourhood of Nirmla Aunty and her name was Rajni. I was also visiting the house of Rajni. In the noon time when all were sleeping, Ghanshyam Uncle after dragging/pulling me took me to his room (Ghanshyam Uncle mujhe kheech kar apne kamre me lay gaye) and committed Balatkaar ' ' with me (Balatkaar kiya) and he also threatened me to kill and also threatened to get me out from my employment (mujhe meri nokari se nikalwa dega). I did not disclose the said incident to any one. The incident pertains to about three years back. I do not recollect the date, month and year. After about three days of the said incident, he again dragged me into his room (Teen din baad phir mujhe kheech kar apne kamre me ley gai) and committed ' Balatkaar ' upon me. At that time also I was made fearful by him (Us time bhi mujhe dara diya tha) so I did not disclose the incident to any one. Thereafter, many times he committed rape ( Balatkaar ) upon me. After about 14 days I had pain in my stomach (Chhoda din baad mere pait mai dard hua). I told about my stomach pain to Nirmla Aunty and thereafter I had also told about my stomach pain to Rajni, daughter of Nirmla Aunty and she (Rajni) took me to the hospital. In the hospital it was told that I have a child in my stomach (pata chla mere pait me baccha hai). Thereafter, I was left at Naari Niketan by Nirmla Aunty. Police was telephoned by Nirmla Aunty. Police came at the house of Nirmla Aunty. My statement was recorded by the police. I had put my thumb impression on my statement made to the police. The Thumb impression 90 of 127 91 FIR No. 140/10 PS - Bharat Nagar on statement shown to me at point A is mine. The statement is Ex. PW18/A. Police had taken me to hospital. My medical examination was also conducted. My statement u/s 164 Cr.P.C. was also got recorded which is Ex. PW17/B, bearing my thumb impression at point B. I gave birth to a female baby child at Deen Dayal Upadyay Hospital, Delhi. The coloured photo affixed on the left top corner encircled at point 'X' is of my female baby child, on DNA Fingerprinting Identification Form Ex. PW2/D."
(Underlined by me) From the aforesaid narration of the PW18 - prosecutrix, it is clearly indicated that she has described the scenario implicating the accused to be the author of the crime, of committal of the sexual assaults upon her and made her pregnant. When she felt pain in her stomach, she told about her stomach pain to Nirmala Aunty (PW8) and thereafter, she had also told about her stomach pain to Rajni (PW5), daughter of Nirmala Aunty and Rajni took her to the Hospital and in the Hospital, it was told that she has a child in her stomach (Pata Chala Mere Pet Mei Bacha Hai). It is at this juncture, the prosecutrix had disclosed to PW5
- Rajni Kohli and PW8 Nirmala Nayyar about the facts and circumstances leading to her pregnancy. Prior to that, she could not disclose about the committal of the sexual assaults upon her as she has 91 of 127 92 FIR No. 140/10 PS - Bharat Nagar very categorically stated in her examinationinchief as reproduced here inabove that, "Ghanshyam Uncle committed Balatkaar with her and he also threatened her to kill and also threatened to get her out from her employment, if she disclosed the incident to anyone and repeatedly she was raped by accused Ghanshyam and was made fearful by him so she did not disclose the incident to anyone." In the circumstances, the theory floated by the accused that, "since the prosecutrix was exposed because of her pregnancy, she levelled allegations of rape against the accused", falls flat on the ground.
In the circumstances, there is no substance in the plea so raised by the Learned Counsel for the accused.
21. Learned Counsel for the accused submitted that no independent person from the colony was inquired for the statement recorded. Learned Counsel for the accused further submitted that none of inhabitants of the area or the Chowkidar has been joined as a witness to the alleged arrest of the accused.
92 of 127 93 FIR No. 140/10 PS - Bharat Nagar I have carefully perused and analysed the evidence on record.
On careful perusal and analysis of the testimony of PW21 - SI Raj Bala, IO, the same is found to be clear, cogent and a graphic details of the steps which she took during the course of investigation. She has specifically deposed in her examinationinchief that accused was arrested vide arrest memo Ex. PW11/A and his personal search was conducted vide memo Ex. PW11/B, both bearing her signatures at point 'B'. Inspite of her incisive crossexamination, nothing material has been brought out so as to impeach her creditworthiness. There is nothing in her statement to suggest that she had any animus against the accused to falsely implicate him in the case.
During her crossexamination, PW21 - SI Raj Bala has specifically deposed that : "It is wrong to suggest that no inquiry was made in the neighbourhood of accused Ghanshyam Das except that to the family members of Nirmala Devi of Flat No. 108. (Vol. inquiry was made by me from the President of that colony and one more other person. No statements of the President of that colony and that other person from whom I made inquiries were recorded. The said fact inclusive of their names have been mentioned in the case diary. It is wrong to suggest that no such fact regarding the names and that of inquiries made to the 93 of 127 94 FIR No. 140/10 PS - Bharat Nagar President of colony and other person is mentioned in the case diary."
The mere fact of nonjoining a public witness, will not ipso facto make the evidence of the Police witnesses suspect, unreliable or untrustworthy. (Ref. 'Abdul Mura Salim Vs. State' 2005 (8) JCC 1776).
Nonjoining of the public witness does not falsify the case of 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."
The prosecution can be expected to examine only those who 94 of 127 95 FIR No. 140/10 PS - Bharat Nagar have witnessed the events and not those who have not seen it though the neighbourhood may be replete with other residents also.
In case 'State of Rajasthan Vs. Teja Ram & Ors.', AIR 1999 SC 1776, the Hon'ble Supreme Court has held that : "The overinsistence on witnesses having no relation with the victims often results in criminal justice going away. 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."
In the circumstances, there is no substance in the plea so raised by the Learned Counsel for the accused.
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22. Learned Counsel for the accused submitted that the suggestion was given to PW21 - SI Raj Bala that money was being demanded from the accused and where after, the FIR was lodged against the accused.
I have carefully perused and analysed the evidence on record.
During the crossexamination of PW21 - SI Raj Bala, it was suggested to her that the accused was not arrested in the manner she deposed or that accused himself had gone to the Police Station alongwith his few acquaintances before the registration of the FIR and there at the Police Station, money negotiations were held and a demand of Rs. 50,000/ was placed out of which Rs. 25,000/ for the Police and Rs. 25,000/ for the prosecutrix which she negated.
The relevant part of the crossexamination of PW21 - SI Raj Bala reads as under : "It is wrong to suggest that accused was not arrested in the manner I deposed or that accused himself had gone to the police station along with his few acquaintances before the registration of the FIR and 96 of 127 97 FIR No. 140/10 PS - Bharat Nagar there at the Police Station, money negotiations were held and a demand of Rs. 50,000/ was placed, out of which Rs. 25,000/ for the police and Rs. 25000/ for the prosecutrix."
The said theory propounded by the Learned Counsel for the accused by putting the suggestion to PW21 - SI Raj Bala which she negated, has not been probable, much established by any cogent evidence, therefore, falls flat on the ground. Nor the said theory was put to PW18 - prosecutrix during her incisive and lengthy cross examination. Moreover, not a single word regarding the said theory has been uttered by the accused in his statement recorded u/s 313 Cr.P.C.
In the circumstances, there is no substance in the plea so raised by the Learned Counsel for the accused.
23. Learned Counsel for the accused submitted that PW21 - SI Raj Bala has stated in her chief that DD No. 59B is regarding rape but DD No. 59B does not say so. On her crossexamination, she admits that DD No. 59B is only regarding a quarrel in House No. 118, SFS Flats.
97 of 127 98 FIR No. 140/10 PS - Bharat Nagar I have carefully perused and analysed the evidence on record.
PW21 - W/SI Raj Bala in her examinationinchief has deposed that on 24/05/2010, she was posted as SI at Sub Division, Ashok Vihar, Delhi in Rape Cases. On that day, after receiving the information from SHO, PS Bharat Nagar, she reached PS Bharat Nagar at about 10:00 a.m. where she was informed about DD No. 59B regarding rape which was attended by HC Tribhuvan Nath. Thereafter, she reached at the spot i.e H. No. 108, Shakti Apartment, Ashok Vihar, PhaseIII, Delhi where HC Tribhuvan Nath, W/Constable Ishwanti, Constable Sunil and resident of said house met her. Prosecutrix (name withheld) was also found present there.
During her crossexamination, PW21 - W/SI Raj Bala has deposed that : "It is correct that in DD no.59B, it is found mentioned that there is quarrel at House no. 118, SFS flat, Ashok Vihar, Phase III, Shakti Apartment behind Bharat Nagar School. Vol. there may be some communication gap. I have cleared the house number from the Duty Officer and duty officer told me that the incident is occurred at House No. 108."
98 of 127 99 FIR No. 140/10 PS - Bharat Nagar From the aforesaid narration of PW21 - W/SI Raj Bala, no doubt, it is indicated that in her examinationinchief she has deposed that DD No. 59B (Ex. PW13/A) is regarding rape and during her cross examination, she admitted it to be correct that in the DD No. 59B, it is found mentioned that there is quarrel at House No. 118, Ashok Vihar, Phase - III, Shakti Apartments behind Bharat Nagar School but has clarified that this occurred due to communication gap and the incident occurred at House No. 108.
I have carefully gone through the DD No. 59B dated 24/05/2010 Ex. PW13/A. The said lapse/discrepancy in the testimony of PW21 - W/SI Raj Bala though, she has explained it, may reflect upon the investigation but does not reflect upon the substantive evidence and the probative value of the statement made by PW18 - prosecutrix on the material and relevant aspects. Nor does it vitiate or negate the case of the prosecution which is otherwise proved on record by clear, cogent and convincing evidence. The version of PW18 prosecutrix on the core spectrum of crime has remained intact.
99 of 127 100 FIR No. 140/10 PS - Bharat Nagar 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 PW1 - Dr. J. P. Palia, who conducted the physical examination of the accused and has stated there was no external injury upon the accused. The only opinion was that the patient was capable of sexual intercourse. This witness also stated regarding the physical examination of the prosecutrix by Dr. Sumit Arora, vide MLC Ex. PW1/B. Dr. Sumit Arora did not enter the witness box.
I have carefully perused and analysed the evidence on record.
It is not made clear by the Learned Counsel for the accused as to what benefit she intends to reap by raising the said plea.
The testimony of PW18 - Proseutrix has been reproduced, discussed and analysed hereinbefore. At the cost of repetition, the testimony of PW18 - prosecutrix has been found to be clear, natural, 100 of 127 101 FIR No. 140/10 PS - Bharat Nagar cogent, convincing, trustworthy 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.
As regards the plea that no external injury was found upon the body of the accused is concerned, the absence of any injury on the body of the accused does not falsify the case of the prosecution which is otherwise proved on record by clear, cogent and convincing evidence.
PW1 - Dr. J. P. Paliya, CMO, BJRM Hospital has proved the MLC of the accused Ex. PW1/A as well as the opinion of Dr. Vikas, SR, Surgery from point 'X' to 'X' on the MLC Ex. PW1/A that there was nothing to suggest that the patient/accused was not capable of committing sexual intercourse.
At the cost of repetition, PW1 - Dr. J. P. Palyia, CMO, BJRM Hospital, Delhi has deposed that he is deputed by MS in place of Dr. Sumit Arora and Dr. Vikas. Both these Doctors have since left the Hospital and their present whereabouts are not known. He is conversant with the handwriting and signatures of both the Doctors as they worked in the Hospital with him. He can identify their handwriting and 101 of 127 102 FIR No. 140/10 PS - Bharat Nagar signatures. On 26/05/2010, patient Ghanshyam Das Nandwani S/o Sh. Ram Kishan aged 66 years male was brought by the Police for medical examination with alleged history of committing sexual assault. He examined the patient. No fresh external injury is seen. He prepared the MLC Ex. PW1/A and patient was referred to S. R. Surgery for further examination. MLC is in his handwriting and bears his signatures at point 'A'. In the Surgery Department the patient was examined by Dr. Vikas, S. R. Surgery. As per his endorsement on Ex. PW1/A, Dr. Vikas examined the patient. His endorsement is from point 'X' to 'X' bearing his signatures at point 'B'. In his opinion there was nothing to suggest that patient was not capable of committing sexual intercourse. Dr. Vikas seized undergarments, blood samples on gauze in the sealed parcels and handed over to SI Raj Bala. Patient refused for semen collection. He (PW1) identified writing and signatures of Dr. Vikas.
Despite grant of opportunity, PW1 - Dr. J. P. Palyia was not crossexamined on behalf of the accused.
In the circumstances, there is no substance in the plea so raised by the Learned Counsel for the accused.
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25. Learned Counsel for the accused submitted that PW4 - Dr. Meenu, who deposed regarding medical examination of the prosecutrix by Dr. Anjali, who had conducted the gynae examination of the prosecutrix. She did not have personal knowledge of the case and patient was also not examined, nor the report prepared in her presence. Learned Counsel submitted that no reason has been given why Dr. Anjali was not available and leaving the services in the said Hospital is no excuse and the accused has been prejudiced by nonexamination of Dr. Anjali by the prosecution, whose address could have been taken from Medical Council of India and thereafter, she could have been produced for her evidence.
I have carefully perused and analysed the evidence on record.
Section 47 of Indian Evidence Act, 1872 provides for opinion as to handwriting, when relevant. It reads as under : "47. Opinion as to handwriting, when relevant. When the Court has to form an opinion as to the person by whom any document was written or signed, the opinion of any person acquainted 103 of 127 104 FIR No. 140/10 PS - Bharat Nagar with the handwriting of the person by whom it is supposed to be written or signed that it was or was not written or signed by that person, is a relevant fact.
Explanation. A person is said to be acquainted with the handwriting of another person when he has seen that person write, or when he has received documents purporting to be written by that person in answer to documents written by himself or under his authority and addressed to that person, or when in the ordinary course of business, documents purporting to be written by that person have been habitually submitted to him."
From above, it is clearly indicated that the opinion of any person acquainted with the handwriting of the person by whom any documents was written or signed, is a relevant fact. As per the explanation, a person is said to be acquainted with the handwriting of another person when he has seen that person write.
PW4 - Dr. Meenu, SR. Gynae, BJRM Hospital, Delhi in her examinationinchief recorded on 03/05/2011 has specifically deposed which is reproduced and reads as under : "Today, I have been deputed by the MS of BJRM on behalf of Dr. Anjali who was working as SR (Gynae) in BJRM Hospital. Dr. Anjali has since left the services of the Hospital. I can identify the 104 of 127 105 FIR No. 140/10 PS - Bharat Nagar handwriting and signatures of Dr. Anjali as I have seen her writing and signing during the course of my official duties."
From the aforesaid narration of PW4 - Dr. Meenu, it is clearly indicated that Dr. Anjali was working as SR, Gynae in BJRM Hospital, who has since left the services of the Hospital and she can identify the handwriting and signatures of Dr. Anjali as has seen her writing and signing during the official course of her duties.
In the circumstances, PW4 - Dr. Meenu, being acquainted with the handwriting and signatures of Dr. Anjali as she had seen her writing and signing during the course of her official duties has proved the gynaecological examination, made by Dr. Anjali in red encircled area as PX on the MLC Ex. PW1/B bearing signature of Dr. Anjali at point 'B1'.
In view of above and in the circumstances, there is no substance in the plea raised by the Learned Counsel for the accused that the defence of the accused has been seriously prejudiced by non 105 of 127 106 FIR No. 140/10 PS - Bharat Nagar production of Dr. Anjali.
In the circumstances, there is no substance in the plea so raised by the Learned Counsel for the accused.
26. Learned Counsel for the accused submitted that PW5 - Rajni Kohli is the daughter of the employer of the prosecutrix. She states about the fact of pregnancy of the prosecutrix and the important fact to be noted is that she does not say anywhere that when the prosecutrix was confronted by her regarding her pregnancy. All what the prosecutrix told her that "it was a result of her relationship with Uncle of Flat No. 106. She was asked about the pregnancy and she told that the Uncle who resides in Flat No. 106, Shakti Apartments, called her and did the same and he used to call her in his flat then we informed to the Police No. 100 number". In crossexamination, this witness stated that her mother called 100 number on 24/05/2010 at 7:30/8:00 p.m. However, she denied the suggestion that her mother made a call regarding some quarrel. This witness had admitted that there is a Temple, which is at a distance of 10 feet from her mother's house and the only Temple in Shakti Apartments and also that the Priest of the 106 of 127 107 FIR No. 140/10 PS - Bharat Nagar Temple reside at the backside of the Temple. She also admitted that opening time of the Temple was 5:00 p.m. and for two three hours in the afternoon it is closed. She also admitted that in front of her mother's house, Flat No. 107 is situated and entrance door of both the houses face each other. This witness admitted that the house was kept under lock and keys by her mother, who used to keep the keys under her pillow, which was taken out by the maid, in case any visitor came to the house. The witness also stated that there were three ways from her mother's house to go to the market. The shortest way was from front of Flat No.
106. The witness also admitted that there were two entrances in the flat of the house. She also admitted that during the medical of the prosecutrix, she was accompanying the prosecutrix and also when the statement of the prosecutrix was recorded, she alongwith her husband was present. Learned Counsel for the accused further submitted that PW8 - Nirmala Nayyar is the mother of the employer of the prosecutrix. She stated that as the prosecutrix complained the pain in her stomach, she sent her alongwith her daughter to Sunder Lal Jain Hospital and it was informed that she was pregnant. On coming to know of this fact, she informed the Police. This witness did not know how prosecutrix had 107 of 127 108 FIR No. 140/10 PS - Bharat Nagar become pregnant and was crossexamined by the Learned Addl. PP. Even after being crossexamined, this witness resiled from her statement Mark PW8/A from various portions 'A' to 'A' and 'B' to 'B'. The witness further deposed in her crossexamination that prosecutrix (name withheld) used to lock the door and also used to open the same. She admitted that there was a Temple near her house and people used to visit that Temple. This witness also admitted that throughout the investigation by the Police and at the time of recording of statement under Section 164 Cr.P.C. by the MM, her soninlaw was present. She admitted that she did not know the name of the accused but he is resident of Flat No. 106 and further deposed that the Police stayed at the spot for about one hour, but had no knowledge as to whether her statement was recorded on the same day or on the next day.
I have carefully perused and analysed the evidence on record.
The testimonies of PW5 - Smt. Rajni Kohli and PW8 - Smt. Nirmala Nayyar have been reproduced, discussed and analysed hereinbefore. At the cost of repetition, the testimonies of PW5 - Smt. 108 of 127 109 FIR No. 140/10 PS - Bharat Nagar Rajni Kohli and PW8 - Smt. Nirmala Nayyar have been found to be clear, natural, cogent, convincing 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.
At the cost of repetition, the testimony of PW18 - Prosecutrix has also been found to be corroborated in material particulars by the testimonies of PW5 - Smt. Rajni Kohli and PW8 - Smt. Nirmala Nayyar, to whom PW18 Prosecutrix disclosed the facts relating to the crime shortly after the incident at the first available opportunity being relevant u/s 6 & 8 of the Indian Evidence Act, 1872.
At the cost of repetition, PW5 - Smt. Rajni Kohli in her examinationinchief has deposed that : "My mother Nirmala Nayyar resides at Flat No. 108, Shakti Apartment. It is situated in the next plot near my flat. There was a made (maid) servant namely prosecutrix (name withheld) aged about 19 years. On 23/05/2010 she told that she was having some pain in her abdomen then my mother called me. She told that she was not having 109 of 127 110 FIR No. 140/10 PS - Bharat Nagar periods since 45 months. Since on 23/05/2010 it was Sunday thats why I did not get her to the Doctor. On 24/05/2010 I had taken prosecutrix (name withheld) to Sunder Lal Jain Hospital in the morning. After examination doctor told that she is having pregnancy of five months. Her ultrasound was also taken. She was asked about the pregnancy and she told that the uncle who resides in flat no. 106, Shakti Apartment called her and did the same and he used to call her in his flat then we informed to the Police on 100 number. IO recorded my statement. I identify the accused Ghanshyam Das present in the Court today who used to reside in flat no. 106, Shakti Apartment.
Prosecutrix (name withheld) was got kept as maid servant by my brother who resides at Asik Vihar. Prosecutrix (name withheld) was appointed through Red Rose Placement Agency, Punjabi Bagh for a sum of monthly salary Rs. 1,500/ because my mother having ill health and she is unable to walk properly. I handed over treatment papers and ultrasound report of prosecutrix (name withheld) to their (the) IO. I identify photocopy of treatment & ultrasound recorded of prosecutrix (name withheld). The same is mark PW5/A and B. IO recorded my statement."
At the cost of repetition, PW8 - Smt. Nirmala Nayyar in her examinationinchief has deposed that : "I had a maid by the name of prosecutrix (name withheld) who was working at my house since about 22 and a half years. I do not remember the date, month or year, one day prosecutrix (name withheld) told me that she was having pain in her stomach. Since I was living alone, I called my daughter Rajni. She took her to Sunder Lal Jain 110 of 127 111 FIR No. 140/10 PS - Bharat Nagar Hospital where she was examined and it was found that she was pregnant. I then informed the Police. My children had arranged the maid/prosecutrix (name withheld) from an agency at Punjabi Bagh but I do not know the name of the agency. Her monthly salary was Rs. 1,500/. I do not know how prosecutrix (name withheld) had become pregnant."
At the cost of repetition, inspite of incisive cross examination of PW5 - Smt. Rajni Kohli and PW8 - Smt. Nirmala Nayyar, nothing material has been brought out so as to impeach their creditworthiness. They have withstood the rigors of crossexamination without being shaken.
So far as the plea raised regarding the discrepancies in the testimonies of PW5 - Smt. Rajni Kohli and PW8 - Smt. Nirmala Nayyar, these are merely the inconsistencies on the fringe without materially affecting the credibility of the evidence. Nor do they go to the root of the matter. Moreover, a witness cannot be expected to possess a photographic memory and to recall the details of an incident. It is not as if a video tape is replayed on the mental screen. There are bound to be some discrepancies in the narration of certain witnesses 111 of 127 112 FIR No. 140/10 PS - Bharat Nagar when they speak out details. The corroboration of evidence with mathematical niceties cannot be expected in criminal cases.
Even the honest and truthful witness may differ in some details unrelated to the main incident because power of observation, retention and reproduction differs with individuals. Discrepancies which do not go to the root of the matter and shake the basic version of the witnesses, therefore cannot be annexed with undue importance. (Ref. 'Mahmood Vs. State', 1991 RLR 287).
The Hon'ble Supreme Court of India in case 'Leela Ram Vs. State of Haryana', (1999) 9 SCC 525 has observed that there are bound to be some discrepancies in the narration of certain witnesses when they speak out details. The corroboration of evidence with mathematical niceties cannot be expected in criminal cases. Minor embellishments, there may be, but variations by reasons therefore should not render the evidence of eye witnesses unbelievable.
The Hon'ble Supreme Court in 'Bharwada Bhoginbhai 112 of 127 113 FIR No. 140/10 PS - Bharat Nagar 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 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 113 of 127 114 FIR No. 140/10 PS - Bharat Nagar 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].
114 of 127 115 FIR No. 140/10 PS - Bharat Nagar In the circumstances, there is no substance in the plea so raised by the Learned Counsel for the accused.
27. Learned Counsel for the accused submitted that PW10 HC Tribhuvan Nath denied that the proceedings of the Police were done at Police Station, but from the statements of the prosecutrix and IO, it would be clear that the Police have done all the manipulation in the Police Station.
I have carefully perused and analysed the evidence on record.
The said lapse/discrepancy reflect on the investigation but does not reflect upon the substantive evidence and the probative value of the statement made by PW18 - prosecutrix on material and relevant aspects. Nor does it vitiate or negate the case of the prosecution which is otherwise proved on record by clear, cogent and convincing evidence. The version of PW18 prosecutrix on the core spectrum of crime has remained intact.
The testimony of PW18 - Prosecutrix has been reproduced, 115 of 127 116 FIR No. 140/10 PS - Bharat Nagar discussed and analysed hereinbefore. At the cost of repetition, the testimony of PW18 - prosecutrix has been found to be clear, natural, cogent, convincing, trustworthy 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, the testimony of PW21 - SI Raj Bala IO has been detailed, discussed and analysed hereinbefore and has been found to be clear, cogent and a graphic details of the steps which she took during the course of investigation. There is nothing in her statement to suggest that she had any animus against the accused to falsely implicate him in the case.
In the circumstances, there is no substance in the plea so raised by the Learned Counsel for the accused.
28. Learned Counsel for the accused submitted that PW14 - W/Constable Renu has stated that at 9:30 p.m. information was received from House No. 108, SFS Flats from one Manish Nayar that some quarrel was taking place. The important fact to be noted is that in this 116 of 127 117 FIR No. 140/10 PS - Bharat Nagar PCR call, there is no mention about the alleged rape or the allegations of the prosecutrix. Learned Counsel for the accused further submitted that PW15 - HC Rishi Prakash has stated that he was Incharge of PCR Van, who went to 108, SFS Flats and took prosecutrix (name withheld) to Sunder Lal Jain Hospital, where she complained about pain in her abdomen and it was revealed that she was 20 weeks pregnant and prosecutrix (name withheld) was naming the resident of Flat No. 106 and HC Tribhuvan, PW10, from PS Bharat Nagar had come and call was handed over to him. Even this witness who was first hand did not state anything regarding the allegations of the prosecutrix regarding the alleged rape.
I have carefully perused and analysed the evidence on record.
At the cost of repetition, PW14 - W/Constable Renu has deposed that on 24/05/2010, she was present on her duty at Police Control Room, PHQ in the night shift duty. On that same day, at about 9:30 p.m., one information was received from the caller Manish Nair, R/o 108, SFS Flats, Ashok Vihar, Phase - III, Shakti Apartment, Behind 117 of 127 118 FIR No. 140/10 PS - Bharat Nagar Bharat Nagar School, New Ashok Vihar, Delhi regarding quarrel. She recorded this information and it was transmitted to the concerned PCR of the area and concerned Police Station for necessary action. She has brought the computerised copy of the PCR Form. Copy already placed on file is Ex. PW14/A. Despite grant of opportunity, PW14 - W/Constable Renu was not crossexamined on behalf of the accused.
At the cost of repetition, PW15 - HC Rishi Prakash has deposed that on 24/05/2010, he was posted as Incharge at PCR Van Commander - VIII in North West District. On that day after receiving the call they reached at the spot i.e. 108, SFS Flats, Phase - III, Ashok Vihar, Delhi where they met Nirmala Devi alongwith her servant/prosecutrix (name withheld). On the complaints of prosecutrix (name withheld) regarding pain in her abdomen. She was medically examined in Sunder Lal Jain Hospital and after medical examination it was revealed that she is pregnant of 20 weeks and prosecutrix (name withheld) is naming about the resident of Flat No. 106 in this regard. HC Tribhuvan from PS - Bharat Nagar came there and call was handed 118 of 127 119 FIR No. 140/10 PS - Bharat Nagar over to him. He (PW15) has brought the call register. The copy of the call register is Ex. PW15/A (OSR).
During his crossexamination PW15 - HC Rishi Prakash has deposed that : "It is correct that we receive (received) the call regarding the quarrel. It is correct that Kumari/prosecutrix (name withheld) was not medically examined in my presence."
On careful perusal and analysis the testimonies of PW14 - W/Constable Renu and PW15 - HC Rishi Prakash, Incharge, PCR Van are found to be clear, cogent and inspiring confidence. There is nothing in the crossexamination of PW15 - HC Rishi Prakash so as to impeach his creditworthiness. Both the said PWs have deposed regarding the facts as to what they acted, perceived and observed.
I have carefully gone through the PCR Form Ex. PW14/A as well as the copy of the call register Ex. PW15/A. The relevant information contained in the PCR Form Ex. PW14/A reads as under : "24/05/2010 21:55:03 Complainant Nirmala Ne Bataya Ki Meri Naukrani prosecutrix (name withheld) D/o Paalum, Age - 19 Ke 119 of 127 120 FIR No. 140/10 PS - Bharat Nagar Sath Padosi H. No. 106 Mei Rehta Kai Ne Galat Kaam Kiya Hai Jo 3/4 Month Ki Pregnant Hai."
From the said information so contained in the PCR Form Ex. PW14/A, it clearly points an accusing finger towards the accused.
On the basis of the information contained in the PCR Form Ex. PW14/A, the same was transmitted to the concerned PCR of the area as per the testimony of PW14 - W/Constable Renu discussed herein above and on receipt of the said information, PW15 - HC Rishi Prakash acted upon regarding which he has deposed and made the entry in the call register Ex. PW15/A as discussed hereinabove.
In the circumstances it does not lie in the mouth of the accused to utter that there is no mention about the alleged rape or the allegations of rape of the prosecutrix by the accused.
As regards the plea of the Learned Counsel for the accused that PW15 - HC Rishi Prakash was the first hand did not state anything regarding the allegation of the prosecutrix regarding the alleged rape is 120 of 127 121 FIR No. 140/10 PS - Bharat Nagar also found to have no substance in view of as to what has been discussed hereinabove.
In the circumstances, there is no substance in the plea so raised by the Learned Counsel for the accused.
29. Learned Counsel for the accused submitted that PW16 - Constable Sunil Kumar has been planted as a witness and what he states is contrary to the version of other Police witnesses. According to this witness after receiving the DD No. 59B by HC Tribhuvan Nath PW10, they reached the house of the prosecutrix. This witness categorically states that W/SO Raj Bala recorded the statement of prosecutrix and thereafter they took the prosecutrix for medical to BJRM, whereafter they returned to the spot and then W/SI Rajbala prepared a Tehrir and handed it over to HC Tribhuvan Nath, PW10. On crossexamination, this witness falls flat on the floor. He is showing the position of Flat No. 106 and 108 one above the other (Upper Niche), which itself would reveal that he never visited the place of alleged incident. Learned Counsel for the accused further submitted that as per PW21 - Rajbala 121 of 127 122 FIR No. 140/10 PS - Bharat Nagar IO they had reached back to the Police Station at 6:00 a.m. alongwith the prosecutrix (name withheld) and that she had sent the Tehrir (Rukka) from the Hospital at about 4:00 a.m. Thereafter she stated that on her instructions, HC Tribhuvan Nath, PW10, came back at the spot alongwith copy of FIR and original rukka at 5:30/5:45 a.m., whereafter she prepared the site plan at 5:30 to 6:00 a.m. This witness admitted that she had not shown the room in the site plan in which the alleged rape was committed. Neither she inspected the house where the alleged rape was committed, even later on. On being confronted with her site plan, she admits that there was a Temple, park and a thorough passage between the houses shown in the site plan and even the entrance of House No. 106 was not shown by her.
I have carefully perused and analysed the evidence on record.
On careful perusal and analysis of the testimonies of PW10 HC Tribhuvan Nath, PW16 - Constable Sunil Kumar and PW21 - W/SI Raj Bala, the same are found to be the description of the facets of the investigation which PW10 - HC Tribhuvan Nath and PW16 -
122 of 127 123 FIR No. 140/10 PS - Bharat Nagar Constable Sunil Kumar joined and of the steps taken by PW21 - W/SI Raj Bala IO during the course of investigation.
The lapses/irregularities regarding which the plea has been raised reflect on the investigation but do not reflect upon the substantive evidence and the probative value of the statement made by PW18 - prosecutrix on material and relevant aspects. Nor do they vitiate or negate the case of the prosecution which is otherwise proved on record by clear, cogent and convincing evidence. Nor do they dislodge the substratum of the prosecution case and despite their existence, the clear, cogent, convincing, reliable and trustworthy evidence proved on the record bears out the case of the prosecution. The version of the prosecutrix on the core spectrum of crime has remained intact. Moreover, a witness cannot be expected to possess a photographic memory and to recall the details of an incident. It is not as if a video tape is replayed on the mental screen. There are bound to be some discrepancies in the narration of certain witnesses when they speak out details. The corroboration of evidence with mathematical niceties cannot be expected in criminal cases. The power of observation, retention and reproduction differs with individuals.
123 of 127 124 FIR No. 140/10 PS - Bharat Nagar 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 217, has held much importance cannot be attached to minor discrepancies for the reasons : 124 of 127 125 FIR No. 140/10 PS - Bharat Nagar
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.
In the circumstances, there is no substance in the plea so raised by the Learned Counsel for the accused.
30. Learned Counsel for the accused referred to the cases and are reported as 'Narender Kumar Vs. State (NCT of Delhi)' II(2012) DLT (CRL.) 619 (SC), 'Sajid @ Salman Vs. State' 2013 (2) JCC 808 and 'Jagmohan Vs. State (GNCT of Delhi) and Ors.' 2013 (3) JCC 2135.
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 125 of 127 126 FIR No. 140/10 PS - Bharat Nagar 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".
31. In view of above and in the circumstances, prosecution has thus categorically proved beyond shadows of all reasonable doubts that 5/6 months prior to 25/05/2010 at House No. 106, Shakti Apartment, Ashok Vihar, Phase - III, Delhi, accused Ghanshyam Das Nandwani committed rape at different times upon the person of PW18 prosecutrix (name withheld), aged between 2022 years and also criminally intimidated her by threatening to kill her and not to disclose about the incident to anyone, whereupon PW18 - Prosecutrix became pregnant and delivered a baby whose DNA profiling matched with accused Ghanshyam Das Nandwani as a Biological Father.
I accordingly hold accused Ghanshyam Das Nandwani guilty 126 of 127 127 FIR No. 140/10 PS - Bharat Nagar for the offences punishable u/s 376/506 IPC and convict him thereunder.
32. In view of above discussion, I am of the considered opinion that as far as the involvement of the accused Ghanshyam Das Nandwani in the commission of the offences u/s 376/506 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 Ghanshyam Das Nandwani beyond shadows of all reasonable doubts and there is no room for hypothesis, consistent with that of innocence of accused. I, therefore, hold accused Ghanshyam Das Nandwani guilty for the offences punishable u/s 376/506 IPC and convict him thereunder.
Announced in the open Court (MAHESH CHANDER GUPTA) on 09th Day of July, 2014 Additional Sessions Judge Special Fast Track Court (N/W District), Rohini, Delhi 127 of 127