Delhi District Court
State vs . 1. Bihari Mukhiya on 25 October, 2013
1
FIR No. 163/09
PS Shahbad Dairy
IN THE COURT OF SH. MAHESH CHANDER GUPTA :
ADDITIONAL SESSIONS JUDGE : SPECIAL FAST TRACK
COURT : NORTHWEST DISTRICT : ROHINI : DELHI
SESSIONS CASE NO. : 17/13
Unique ID No. : 02404R0254512009
State Vs. 1. Bihari Mukhiya
S/o Makkhan Mukhiya
R/o Village Punhad,
PS - Ghanshyam Pur,
District Darbhangha,
Bihar.
2. Chaudhary Mukhiya
S/o Upender Mukhiya
R/o Village Punhad,
PS - Ghanshyam Pur,
District Darbhangha,
Bihar.
3. Raju Mukhiya
S/o Anand Mukhiya
R/o Punhad,
PS - Ghanshyampur,
District - Darbhanga, Bihar.
(Proclaimed Offender)
1 of 71
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FIR No. 163/09
PS Shahbad Dairy
FIR No. : 163/09
Police Station : Shahbad Dairy
Under Sections : 363/366/376(2)(g) IPC
Date of committal to session Court : 29/09/2009
Date on which judgment reserved : 19/10/2013
Date on which judgment announced : 25/10/2013
J U D G M E N T
1. Briefly stated the case of the prosecution as unfolded by the report under section 173 Cr.P.C. is as under : That on 06/07/2009, HC - Anil Kumar received DD No. 37B to the effect that Smt. Nazma Khatoon alongwith one girl/prosecutrix (name withheld being a case u/s 376 IPC) D/o Fagu R/o Village Dumdama, PS - Umar Gram, District - Dhumapada, West Bengal has come to the Police Station and with that girl/prosecutrix three boys had committed rape in the agricultural fields (Khet) of Alipur. HC
- Anil Kumar got conducted the medical examination of the prosecutrix vide MLC No. 1876/09 and 617/09 and the sealed exhibits handed over by the Doctor after the medical examination of the prosecutrix were 2 of 71 3 FIR No. 163/09 PS Shahbad Dairy taken into Police possession and were deposited in Malkhana. The prosecutrix made the statement which is to the effect that, she is the resident of above said address and for about last two months she was working in a kothi in Kamla Nagar and two months ago, her brother had brought her to Delhi and through the Placement Company, she started working at the said place. The name of her owner (Malik) is Rakesh. In front of her kothi, one boy named Raju used to work who wanted to marry with her. On 04/07/2009 at about 10:00 a.m on the pretext of performing marriage with her, he took her with him. From there, they both by sitting in bus got down at Alipur Bus Stand. From the Alipur Bus Stand, they walked on foot and by walking through the agricultural fields, they stopped in one field (khet) (Alipur Bus Stand Se Hum Paidal Chale The Kheton Kheton Mei Chalte Huae Hum Ek Khet Mei Ruk Gae) where two boys had met and in the night she was kept in the fields at Alipur and there all the three boys had committed galat kaam with her. On 05/07/2009, at about 5:00 a.m., by walk on foot through the fields, they left her at Metro Vihar, Phase - I, Bus Stand (Dinaank 05/07/2009 Ko Subah Paanch Baje Paidal Paidal Kheton Mei Chal Kar Mujhe Metro Vihar Phase - I Bus Stand Par Chor Gae). In the evening at about 6:00 3 of 71 4 FIR No. 163/09 PS Shahbad Dairy p.m., one lady Seema had come to her who later on had taken her to the chowki and at about 10:00 p.m. after informing in chowki, she (Seema) took her with her. Today morning after coming to the Police Station, she (prosecutrix) has made the statement. She has heard the statement and is correct. From the statement of the prosecutrix, on inspection of the MLC and from the circumstances, on finding that offences u/s 363/366/376 (2)(g) IPC appeared to have been committed, the case was got registered and the investigation was handed over to ASI Anil Kumar. During the course of investigation, the site plan was prepared at the instance of the prosecutrix. On 07/07/2009, prosecutrix, accompanied by Smt. Seema, reached at the place of incident and on the identification of the prosecutrix, Chaudhary Mukhiya and Bihari Mukhiya were apprehended and were interrogated and were arrested and their disclosure statements were recorded. Their medical examinations were got conducted and the sealed exhibits handed over by the concerned Doctor after their medical examination were taken into Police possession. Statement of the prosecutrix u/s 164 Cr.P.C. was got recorded. The prosecutrix was sent to the Children Home. Search for accused Raju Mukhiya was made but he could not be found. NBW for 4 of 71 5 FIR No. 163/09 PS Shahbad Dairy the arrest of accused Raju Mukhiya was obtained from the Court and thereafter the processes u/s 82/83 Cr.P.C. were issued by the Court against him and on 16/11/2009 he was declared a Proclaimed Offender (PO). The sealed exhibits were sent to the FSL.
Upon completion of necessary further investigation challan for the offences u/s 363/366/376 (2)(g) IPC was prepared against accused Chaudhary Mukhiya and Bihari Mukhiya and was sent to the Court for trial.
2. During the course of further investigation, since accused Raju Mukhiya could not be arrested and was declared a proclaimed offender (PO) a supplementary chargesheet for the offences u/s 363/366/376 (2)(g) IPC was prepared against Raju Mukhiya and was sent to the Court.
3. Since the offences u/s 366/376 (2)(g) IPC are exclusively triable by the Court of Session, therefore, after compliance of the provisions of Section 207 Cr.P.C, the case was committed to the Court of 5 of 71 6 FIR No. 163/09 PS Shahbad Dairy Session u/s 209 Cr.P.C.
4. Upon committal of the case to the Court of session and after hearing on charge, prima facie a case under section 376 (2)(g) IPC was made out against both the accused Chaudhary Mukhiya and Bihari Mukhiya. Charge was framed accordingly, which was read over and explained to both the said accused to which they pleaded not guilty and claimed trial.
5. In support of its case prosecution has produced and examined 20 witnesses. PW1 - HC Ravinder Kumar, PW2 - prosecutrix, PW3 - Sh. Pritam Mukhiya, PW4 - Sh. Khedia Fagu, PW5
- Sh. Samender Trikey, Pradhan NKS, Gram Panchayat, New Lands Kumar Gram, PO New Lands, District Jalpaigudi, West Bengal, PW6 - W/Constable Poonam, PW7 - Constable Shakeel Ahmed, PW8 - ASI Anil Kumar, PW9 - Smt. Nazma Khan, PW10 - Dr. S. K. Aggarwal, Medical Officer, Central Jail, Tihar, Delhi, PW11 - Dr. Yudhvir Singh, CMO, MBH Hospital, Pooth Khurd, Delhi, PW12 - Constable Ravinder, PW13 - HC Ramesh, PW14 - HC Shambu Singh, PW15 - Ms. Seema, 6 of 71 7 FIR No. 163/09 PS Shahbad Dairy PW16 - Sh. Naveen Gupta, Ld. MM, Tis Hazari, Delhi, PW17 - Ms. Kamna, PW18 - HC Anil Kumar, PW19 - Dr. Sunita Rani, Medical Officer (RCH), MV Hospital, Delhi and PW20 Sh. Naresh Kumar, Senior Scientific Officer, Biology, FSL, Rohini, Delhi.
6. In brief the witnessography of the prosecution witnesses is as under : PW1 - HC Ravinder is the Duty Officer who proved the computerised copy of the FIR Ex. PW1/A and his endorsement Ex. PW1/B on the rukka and deposed that on 06/07/2009, he was posted at PS - Shahbad Dairy and his duty timings were 4:00 p.m. to 12:00 night as Duty Officer. At about 4:05 p.m., HC Anil Kumar gave him a rukka on the basis of which he recorded FIR No. 163/09 u/s 363/366376 (g) IPC on computer. He has brought the original FIR which bears his signature. The computer print out of FIR is Ex. PW1/A (Original seen and returned). Further investigation of the case was entrusted to ASI Anil Kumar as per directions of SHO. He made his endorsement Ex. PW1/B on the rukka.
7 of 71 8 FIR No. 163/09 PS Shahbad Dairy PW2 - Prosecutrix is the victim who deposed regarding the incident and proved her statement made to the Police Ex. PW2/A bearing her thumb impression at point 'A' and also proved the seizure memo of the sealed exhibits which were handed over by the concerned Doctor after her (prosecutrix) medical examination, Ex. PW2/B bearing her thumb impression at point 'A'.
PW3 - Pritam Mukhiya is the owner of the Placement Agency (Jesika Enterprises) who deposed that prosecutrix was brought to his house at Shakur Pur by her husband for her placement as maid servant. On his request, he (PW3) did placement of the prosecutrix at Kamla Nagar at the Kothi of Ms. Kamna (PW17).
PW4 - Khedia Fagu is the father of the prosecutrix who deposed that his daughter/prosecutrix (name withheld) alongwith her husband came to Delhi in the year, 2009. After about 2½ months later, he came to know that his daughter/prosecutrix has been recovered by the Police who was later on released on Superdari to him and further deposed that she was born on 07/12/1984 in the New Lands Hospital and 8 of 71 9 FIR No. 163/09 PS Shahbad Dairy also proved the seizure memo of the birth certificate (Ex. PX) of his daughter/prosecutrix Ex. PW4/A bearing his left hand thumb impression at point 'A'.
PW5 - Sh. Samender Trikey, Pradhan NKS, Gram Panchayat, New Lands Kumar Gram, PO New Lands, District Jalpaigudi, West Bengal who deposed that birth certificate Ex. PX was issued by him on 30/07/2009 after verification of their record of the area of New Lands Tea Garden and the same is signed by him at point 'A' and further deposed that he also verified the said certificate from their record when was brought by one Constable of Delhi Police and put his signature at point 'B' and stamp of Pradhan 'NKS Gram Panchayat'.
PW6 - W/Constable Poonam who proved the attested copy of DD No. 37B dated 06/07/2009 Ex. PW6/A and deposed that she has copied the DD No. 37B of dated 06/07/2009 of PS - Shahbad Dairy as she was posted there from the original record. DD No. 37B was in her handwriting. One lady namely prosecutrix (name withheld) came to the PS alongwith one NGO namely Nazma and she recorded the DD entry 9 of 71 10 FIR No. 163/09 PS Shahbad Dairy on asking by the DO. The attested copy of DD No. 37B is Ex. PW6/A which is in her handwriting and it is the certified copy of the original DD No. 37B.
PW7 - Constable Shakeel Ahmed who joined the investigation on 07/07/2009 with IO ASI Anil Kumar (PW8) and deposed on the investigational aspects and proved the arrest memo of accused Chaudhary Mukhiya Ex. PW7/A, his personal search memo Ex. PW7/C and proved the arrest memo of accused Bihari Mukhiya Ex. PW7/B and his personal search memo Ex. PW7/D, all memos signed by him at point 'A' and also proved the seizure memo of the sealed exhibits which were handed over by the concerned Doctor after the medical examinations of accused Chaudhary Mukhiya and Bihari Mukhiya Ex. PW7/E and Ex.PW7/F respectively both signed by him at point 'A'.
PW8 ASI Anil Kumar is the subsequent Investigating Officer (IO) of the case and deposed on the investigational aspects and proved the site plan Ex. PW8/A besides proving the memos as have been proved by PW7 - Constable Shakeel Ahmed and further deposed that he 10 of 71 11 FIR No. 163/09 PS Shahbad Dairy procured the FSL Result and filed it in the Court.
PW9 - Smt. Nazma Khan is NGO Nav Srishti, Counselor who deposed that she is working in a NGO namely Nav Shrishti, Nangloi. One of the member NGO namely Seema on 05/07/2009 when passed two or three times in front of Metro Vihar Phase - I, Bus Stand she found prosecutrix (name withheld) sitting there and was weeping. Being an NGO member, Seema asked prosecutrix as to why she is weeping. Prosecutrix stated to her that one boy Raju had left her there on the assurance that he has gone to search for the rented accommodation but has not returned so far. Seema finding the prosecutrix in such circumstances brought her to her Panchayat Office of NGO at Metro Vihar,Phase - I. Now the Panchayat Office of NGO is shifted to Metro Vihar, Phase - II. She further deposed regarding the inquiries made from the prosecutrix on 06/07/2009 and of taking her to the Police Station and of the joining of the investigation of the Police besides proving the seizure memo Ex. PW2/B of the sealed exhibits which were handed over by the concerned Doctor after the medical examination of the prosecutrix signed by her at point 'B'.
11 of 71 12 FIR No. 163/09 PS Shahbad Dairy PW10 - Dr. S. K. Aggarwal, Medical Officer, Central Jail, Tihar, Delhi, who medically examined the patient/prosecutrix on 06/07/2009 and deposed that the medical examination is at point 'A' to 'A1' on MLC Ex. PW10/A signed by him at point 'A' and further deposed that after her preliminary examination she was referred to SR, Gynae for further examination.
PW11 - Dr. Yudhvir Singh, CMO, MBH Hospital, Pooth Khurd, Delhi who proved the medical examination of accused Bihari Mukhiya as was conducted by Dr. Virender on 07/07/2009 at about 10:20 a.m. vide MLC Ex. PW11/A signed by Dr. Virender at point 'A' who has also opined that there is nothing to suggest that the patient/Bihari Mukhiya is not capable for sexual intercourse. He further proved the medical examination of patient/accused Chaudhary Mukhiya as was conducted by Dr. Virender on 07/07/2009 at about 10:10 a.m. vide MLC Ex. PW11/B signed by Dr. Virender at point 'A' who has also opined that there is nothing to suggest that the patient/Chaudhary Mukhiya is not capable for sexual intercourse.
12 of 71 13 FIR No. 163/09 PS Shahbad Dairy PW12 - Constable Ravinder who deposed that he is working as a Reader in PS - Roop Nagar. He produced the original record of DD No. 36B dated 04/07/2009 of PS - Roop Nagar and deposed that as per DD No. 36B, a complaint was made by Ms. Kamna (PW17) about the missing of a domestic helper and the same was marked to HC Suresh. HC Suresh gave his final report that the missing girl was recovered by Shahbad Dairy Police Station on 06/07/2009 as such the complaint was filed on 17/08/2009 and proved the complaint of Ms. Kamna (PW17) Ex. PW12/A and marked the details of present address of domestic servant/prosecutrix (name withheld) given by the Placement Agency Jesika Enterprises as Mark 'A'.
PW13 - HC Ramesh who deposed that on 11/08/2009, as per the direction of IO ASI Anil Kumar, he after taking the sealed pullindas from the MHC(M) deposited the same in the Office of FSL, Rohini vide RC No. 79/21/09 and after depositing the samples, the acknowledgment receipt of FSL was handed over to the MHC(M). So long as the pullindas remained with him it was not tampered with by 13 of 71 14 FIR No. 163/09 PS Shahbad Dairy anyone.
PW14 - HC Shambhu Singh is the MHC(M) who proved the relevant entries in register no. 19 Ex. PW14/A and Ex. PW14/B, the copy of the RC No. 79/21/09 Ex. PW14/C and the copy of the acknowledgment receipt of the FSL Ex. PW14/D. PW15 - Ms. Seema is the Para Legal Worker in Nav Shrishti, NGO who deposed that on 05/07/2009 when she was going to her office at Holambi Kalan, Metro Vihar, in the morning hours she saw a girl was sitting at Metro Vihar Bus Stand and after noticing her she (PW15) went to her office and on the same evening when she was coming from her office , she saw that girl was still sitting at Metro Vihar Bus Stand and she asked that girl the reason of her sitting since morning whose name revealed as prosecutrix (name withheld) later on. She (prosecutrix) stated that she was left at the bus stand by Raju saying that he was going in search of a rented room. She (prosecutrix) further stated that Raju brought her on 04/07/2009 and he had kept her in Alipur on that night and left her in the morning at bus stand Metro Vihar. She 14 of 71 15 FIR No. 163/09 PS Shahbad Dairy (prosecutrix) was taken to the Police Post Metro Vihar at about 6:00/7:00 p.m. on that day and all the circumstances were narrated to the Incharge Police Post and as no lady Police official was available in the Police Post, prosecutrix (name withheld) stayed with her (PW15) in her (PW15) house on that night. On the next day in the morning prosecutrix (name withheld) was taken to Police Station Shahbad Dairy and her Incharge Nazma Khatoon was also informed who also reached there and from there they were sent to PS - Alipur by the Police officials of PS - Shahbad Dairy and on the same day prosecutrix (name withheld) had pointed out the agriculture field situated in the jurisdiction of PS - Alipur and Police recorded statement of the prosecutrix (name withheld).
PW16 - Sh. Naveen Gupta, Learned MM, Tis Hazari, Delhi who recorded the statement of the prosecutrix u/s 164 Cr.P.C. and proved the statement of the prosecutrix coupled with the questions made to her Ex. PW16/A which bears the thumb impression of the prosecutrix at point 'A' and attested by him at points 'B' on each page and bears his signature at point 'C'. He also proved the certificate, verifying the 15 of 71 16 FIR No. 163/09 PS Shahbad Dairy correctness of the statement, given by the prosecutrix Ex. PW16/B signed by him at point 'A', his order at point 'X' signed by him at point 'A' for supplying of the copy of the statement to the IO on the application Ex. PW16/C. PW17 - Ms. Kamna who deposed that she is working as a Teacher in the Government Girls Senior Secondary School, Roop Nagar No. 1, Delhi. She had hired a maid/prosecutrix (name withheld) from Jasika Enterprises, Shakur Pur, Delhi for domestic work in the month of May, 2009. On 04/07/2009, when she returned from her School situated at IRI (IARI) Pusa at about 1:15 p.m. her maid servant was not found in the home. She inquired from the neighbourhood but no information was revealed by any one. She also inquired from the Jasika Enterprises telephonically but she (prosecutrix) had also not gone there. Her belongings and other articles were also not found in the house. Ultimately, she made a complaint at Roop Nagar Police Station regarding the missing of her maid/prosecutrix (name withheld) and stated that after some days Police officials of PS - Shahbad Dairy brought the maid at her house for identification and she identified her who fled away from 16 of 71 17 FIR No. 163/09 PS Shahbad Dairy her house few days ago.
PW18 - HC Anil Kumar is the initial IO who deposed that on 06/07/2009, he was posted at PS - Shahbad Dairy and on that day, DD No. 37B Ex. PW6/A was handed over to him by the Duty Officer and deposed on the investigational aspects and besides proving the seizure memo of the sealed exhibits of prosecutrix handed over after her medical examination Ex. PW2/B, signed by him at point 'C' also proved his endorsement Ex. PW18/A signed by him at point 'A' on the statement of the prosecutrix Ex. PW2/A and his attestation at point 'B' and deposed that after registration of the case, further investigation was transferred to ASI Anil Kumar.
PW19 - Dr. Sunita Rani, Medical Officer (RCH), M. V. Hospital, Delhi who deposed that after preliminary examination, patient/prosecutrix was referred to SR, Obs. & Gynae and proved the gynaecological examination of the prosecutrix as was conducted by Dr. Pallavi Singh from portion 'A' to 'A1' on the MLC Ex. PW10/A signed by Dr. Pallavi at point 'B'.
17 of 71 18 FIR No. 163/09 PS Shahbad Dairy PW20 - Sh. Naresh Kumar, Senior Scientific Officer, Biology, FSL, Rohini, Delhi who proved the biological and serological reports Ex. PW20/A and Ex. PW20/B respectively signed by him at point 'A'.
The testimonies of the prosecution witnesses shall be dealt with in detail during the course of appreciation of evidence.
7. Statements of both the accused Bihari Mukhiya and Chaudhary Mukhiya were recorded u/s 313 Cr.P.C. wherein they pleaded innocence and false implication and they opted to lead defence evidence. Although accused Bihari Mukhiya opted to lead defence evidence yet no defence evidence was led by accused Bihari Mukhiya, however accused Chaudhary Mukhiya examined one witness, his uncle, in his defence namely DW1 Sh. Shatrughan Kamant S/o Sh. Shiv Dhari Kamant R/o 3948, Ist Floor, Naya Bazar, Delhi - 110006.
DW1 Sh. Shatrughan Kamant has deposed that Chaudhary Mukhiya son of Sh. Upender Mukhiya is his nephew (Banja). On 18 of 71 19 FIR No. 163/09 PS Shahbad Dairy 04/07/09 at about 10:00 11:00 a.m. accused Chaudhary Mukhiya came to him at his above said address. He came there to purchase a bicycle. He (DW1) got him purchased an old bicycle. He remained with him (DW1) through (out) the day. Thereafter, next morning at about 11:00 - 12:00 noon he left his premises along with bicycle after taking the break fast. After about 1015 days he (PW15) came to know regarding the arrest of accused in the case. Thereafter on enquiry they came to know about his confinement in Rohini Jail. They got the details of the case and thereafter concerned SHO was visited by him (DW1) along with some other persons. When he (DW1) pleaded innocence of the accused before the SHO, he (SHO) said that as the case has been registered therefore, he (SHO) cannot help and whatever grievances they are having they should plead before the Court. Today, he (DW1) is in the Court to depose truth which is in his personal knowledge.
The testimony of the defence witness shall be dealt with in detail during the course of appreciation of evidence.
8. Learned Counsel for the accused submitted that the accused persons are innocent and have been falsely implicated in the case by the 19 of 71 20 FIR No. 163/09 PS Shahbad Dairy complainant PW2 Prosecutrix by misusing the process of law and by misguiding the police officials in order to take revenge for the deeds of their friend Raju.
Learned Counsel for the accused further submitted that the scrutiny of the statement given by PW2 Prosecutrix reveals that she is major, illiterate and a married woman, who was known to one accused Raju (P.O.). Accused Bihari Mukhiya and Chaudhary Mukhiya were not known to her. However, they were known to the other accused Raju. During her deposition before the Court she admitted that she had already married to one Ranjeet against the wishes of her parents. This fact raises doubt towards the act and behaviour of the complainant, when she is married even thereafter she developed friendship of male i.e. Accused Raju and thereafter on the pretext of marriage she left her work place without telling anyone after taking all her belongings. Place where she was taken by the accused Raju was far away from her work place she went there by public transport and she went through public places for reaching the alleged place of incident but she did not raise her voice for help anywhere. This all shows that she was having good relations with Raju and left her work place as per her sweet will and did all the acts 20 of 71 21 FIR No. 163/09 PS Shahbad Dairy willingly with him. This notion further get support from the testimony of PW17, who said during her deposition before the Court that when she came back to her house she did not find her maid in her home and her belongings were also missing. Moreover in the last line of her cross examination she said that Police of Shahbad Dairy informed her verbally that her maid had run away with a boy namely Raju.
Furthermore, during her cross examination Prosecutrix said she did not receive any injury during the alleged act. Which shows that she was not subjected to any forceful act. On asking of Court she told her age as 18 years on 16/10/2010 whereas during her cross examination she told her date of birth as 07/12/1984, which fact was further confirmed by PW4 i.e. Father of the prosecutrix and PW5 who proved birth certificate of the prosecutrix. All this shows that she was of about 25 years on the date of deposition on 16/10/2010. This shows that she is a tutored witness of prosecution, who wish to drag this case in the ambit of legal notions by telling lie to secure conviction.
Learned Counsel for the accused further submitted that during her examination PW2 Prosecutrix stated that she met a lady from NGO namely Sunita whereas prosecution story is that one lady namely 21 of 71 22 FIR No. 163/09 PS Shahbad Dairy Seema met her at Metro Station. No witness with name Sunita ever appeared as witness of prosecution.
Learned Counsel for the accused further submitted that PW7 Constable Shakeel who allegedly joined the investigation submits in his examinationinchief that he joined the investigation on 07/07/2009 and they went to Village Holambi Kalan i.e. Place of occurrence, on same day and arrested two accused and prosecutrix pointed out place of occurrence there. Whereas other witness allegedly joined the investigation regarding arrest and pointing out of place of occurrence says that they joined investigation on 06/07/2009 and they went to Alipur i.e. The place of occurrence. Which creates doubt about the place of occurrence. Further, it is important that during his cross examination he submitted that when they were in search of the accused persons, the prosecutrix was not sure about the place of occurrence. Which further raises suspicion that prosecutrix has misled the investigating agency just to meet her objectives i.e. Revenge from Raju for not marrying her. Whereas the IO of the case PW8 ASI Anil Kumar deposed that they went to place of occurrence on 06/07/2013. During crossexamination PW7 says he joined investigation at about 9:00 - 9:30 a.m. and reached 22 of 71 23 FIR No. 163/09 PS Shahbad Dairy Holambi Kalan i.e. Place of occurrence at about 10:30 - 11:00 a.m. on 07/07/2009, whereas, PW8 during his crossexamination said that on 06/07/2009 he left the PS alongwith one Seema and Prosecutrix for the place of occurrence at 06.15 PM.
Learned Counsel for the accused further submitted that PW15 Ms. Seema is the first person who allegedly came into contact with the prosecutrix after the incident and remained with her on the night of 04/07/2009 at her house. During her crossexamination she said, "Name of Bihari Mukhiya and Chaudhary Mukhiya were not heard by me either during the period when I remained with Prosecutrix or at the time when she had gone to the agriculture field at Alipur or at any time thereafter. It is correct that I had not heard from Prosecutrix that any person had committed Galat Kaam (Wrong Act) or committed rape upon her at any stage".
Learned Counsel for the accused further submitted that medical evidence and FSL report does not support the prosecution case in any manner.
Learned Counsel for the accused further submitted that furthermore, the IO of the case has not made efforts to bring the truth 23 of 71 24 FIR No. 163/09 PS Shahbad Dairy out rather it seems that he did not understand the grievance of the prosecutrix and prepared charge sheet on assumptions and at the time of evidence he tutored the prosecutrix to support his case.
Learned Counsel for the accused further submitted that accused Chaudhary Mukhiya opted to lead defence evidence and examined DW1 Shatrughan Kamant who has deposed against the prosecution story and submitted that on the day of occurrence the accused Chaudhary Mukhiya came to him in the morning hours and remained with him till next day, therefore his involvement in the crime is impossible. His testimony remained unshaken on the presence of the accused on the day of incident with him. Moreover suggestion of the Learned Prosecutor that the accused did not visit him on 04/07/2009 was denied by him and further suggestion that he is deposing falsely to save his Bhanja was also denied by the witness.
Learned Counsel for the accused further submitted that in the absence of any corroborative evidence, it would not be safe to convict the accused for the offence alleged and prayed for the acquittal of the accused from the charges leveled against them.
24 of 71 25 FIR No. 163/09 PS Shahbad Dairy
9. 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 further submitted that the contradictions and discrepancies as pointed out are minor and not the material one's and do not effect the credibility of the witnesses and the prosecution has proved its case beyond reasonable doubt.
10. I have heard Sh. S. C. Sroai, Learned Addl. PP for the State and Sh. Deepak Sharma, Learned Amicus Curiae for the accused and have also carefully perused the entire record.
11. The charge for the offence punishable under section 376 (2)
(g) IPC against accused Bihari Mukhiya and Chaudhary Mukhiya is that 04/07/2009 at the fields (at) Alipur within the jurisdiction of Police Station - Shahbad Dairy, both accused Bihari Mukhiya and Chaudhary Mukhiya alongwith coaccused Raju Mukhiya (since declared PO) committed gang rape on the prosecutrix (name withheld) D/o Phagu aged about 17 years.
25 of 71 26 FIR No. 163/09 PS Shahbad Dairy
12. It is to be mentioned that as a matter of prudence, in order to avoid any little alteration in the spirit and essence of the depositions of the material witnesses, during the process of appreciation of evidence at some places their part of depositions have been reproduced, in the interest of justice.
AGE OF THE PROSECUTRIX
13. PW2 - prosecutrix during her crossexamination recorded on 26/08/2011 has deposed : "I am 18 years old as on today. It is correct that I was born at New Lands, Kumar Gram, Sankosh, Gram Panchayat Hospital. It is correct that I was born on 07/12/1984."
PW4 - Khedia Phagu, father of the prosecutrix in his examinationinchief has deposed that she was born on 07/12/1984 in New Lands, Kumar Gram, Sankosh, Gram Panchayat Hospital and proved the seizure memo of the birth certificate of the prosecutrix (Ex. PX) Ex. PW4/A bearing his left hand thumb impression at point 'A'.
There is nothing in the crossexamination of PW4 - Khedia Phagu so as to impeach his creditworthiness.
PW5 - Sh. Samender Trikey, Pradhan NKS, Gram 26 of 71 27 FIR No. 163/09 PS Shahbad Dairy Panchayat, New Lands Kumar Gram, PO New Lands, District Jalpaigudi, West Bengal who deposed that birth certificate Ex. PX was issued by him on 30/07/2009 after verification of their record of the area of New Lands Tea Garden and the same is signed by him at point 'A'. He further deposed that he also verified the said certificate from their record when was brought by one Constable of Delhi Police and put his signature at point 'B' and stamp of Pradhan 'NKS Gram Panchayat'.
Despite grant of opportunity, PW5 - Sh. Samender Trikey was not crossexamined on behalf of accused. Nor any evidence to the contrary was produced or led on the record by the accused.
In the circumstances, it stands proved on the record that the date of birth of PW2 - prosecutrix is 07/12/1984.
As the date of alleged incident is of 04/07/2009 and the date of birth of prosecutrix is 07/12/1984, on simple arithmetical calculation, the age of prosecutrix comes to 24 years, 06 months and 27 days as on the date of incident on 04/07/2009.
In view of above and in the circumstances, it stands established on record that PW2 prosecutrix was aged 24 years, 06 months and 27 days as on the date of alleged incident on 04/07/2009.
27 of 71 28 FIR No. 163/09 PS Shahbad Dairy MEDICAL EVIDENCE OF THE PROSECUTRIX
14. PW10 - Dr. S. K. Aggarwal, Medical Officer, Central Jail, Tihar, Delhi, who medically examined the patient/prosecutrix on 06/07/2009 and deposed that the medical examination is at point 'A' to 'A1' on MLC Ex. PW10/A signed by him at point 'A' and further deposed that after her preliminary examination she was referred to SR, Gynae for further examination.
Despite grant of opportunity, PW10 - Dr. S. K. Aggarwal was not crossexamined on behalf of accused persons.
PW19 - Dr. Sunita Rani, Medical Officer (RCH), M. V. Hospital, Delhi who deposed that after preliminary examination, patient/prosecutrix was referred to SR, Obs. & Gynae and proved the gynaecological examination of the prosecutrix as was conducted by Dr. Pallavi Singh from portion 'A' to 'A1' on the MLC Ex. PW10/A signed by Dr. Pallavi at point 'B'.
During her crossexamination, PW19 - Dr. Sunita Rani has deposed that, "It is correct that I had not personally examined the patient".
28 of 71 29 FIR No. 163/09 PS Shahbad Dairy There is nothing in the crossexamination of PW19 - Dr. Sunita Rani so as to impeach her creditworthiness. On careful perusal and analysis her testimony is found to be clear, cogent, reliable and she being acquainted with the handwriting and signature of Dr. Pallavi Singh has proved the gynaecological examination as was conducted by Dr. Pallavi Singh from portion 'A' to 'A1' signed by her at point 'B' on MLC Ex. PW10/A. In view of above and in the circumstances, the medical examination at point 'A' to 'A1' and the gynaecological examination from portion 'A' to 'A1', on the MLC Ex. PW10/A of PW2 - prosecutrix stands proved on the record.
VIRILITY OF THE ACCUSED
15. PW11 - Dr. Yudhvir Singh, CMO, MBH Hospital, Pooth Khurd, Delhi who proved the medical examination of accused Bihari Mukhiya as was conducted by Dr. Virender on 07/07/2009 at about 10:20 a.m. vide MLC Ex. PW11/A signed by Dr. Virender at point 'A' who has also opined that there is nothing to suggest that the patient/Bihari Mukhiya is not capable for sexual intercourse. He further proved the 29 of 71 30 FIR No. 163/09 PS Shahbad Dairy medical examination of patient/accused Chaudhary Mukhiya as was conducted by Dr. Virender on 07/07/2009 at about 10:10 a.m. vide MLC Ex. PW11/B signed by Dr. Virender at point 'A' who has also opined that there is nothing to suggest that the patient/Chaudhary Mukhiya is not capable for sexual intercourse.
Despite grant of opportunity, PW11 - Dr. Yudhvir Singh was not crossexamined on behalf of accused persons.
In view of above and in the circumstances, it stands proved on the record that both the accused Bihari Mukhiya and Chaudhary Mukhiya were capable of sexual intercourse. BIOLOGICAL AND SEROLOGICAL EVIDENCE
16. PW20 - Sh. Naresh Kumar, Senior Scientific Officer, Biology, FSL, Rohini, Delhi who proved the biological and serological reports Ex. PW20/A and Ex. PW20/B respectively signed by him at point 'A'.
As per biological report Ex. 20/A the description of articles contained in parcel and result of analyses reads as under : 30 of 71 31 FIR No. 163/09 PS Shahbad Dairy DESCRIPTION OF ARTICLES CONTAINED IN PARCEL Parcel '1' : One sealed cloth parcel sealed with the seal of "CASUALTY MB HOSPITAL POOTH KHURD DELHI 39"
containing exhibit '1' kept in an injection vial. Exhibit '1' : Dark brown foul smelling liquid described as blood sample.
Parcel '2' : One sealed cloth parcel sealed with the seal of "CASUALTY MB HOSPITAL POOTH KHURD DELHI 39"
containing exhibit '2' kept in an injection vial.
Exhibit '2' : A few nail clipping. Parcel '3' : One sealed cloth parcel sealed with the
seal of "CASUALTY MB HOSPITAL POOTH KHURD DELHI 39"
containing exhibit '3' kept in an injection vial. Exhibit '3' : A bunch of hair described as pubic hair. Parcel '4' : One sealed cloth parcel sealed with the seal of "CASUALTY MB HOSPITAL POOTH KHURD DELHI 39"
containing exhibit '4' kept in a syringe.
Exhibit '4' : Cotton wool swab described as vaginal swab. Parcel '5' : One sealed cloth parcel sealed with the seal of "CASUALTY MB HOSPITAL POOTH KHURD DELHI 39"
31 of 71 32 FIR No. 163/09 PS Shahbad Dairy containing exhibit '5'.
Exhibit '5' : One printed salwar. Parcel '6' : One sealed cloth parcel sealed with the
seal of "CASUALTY MB HOSPITAL POOTH KHURD DELHI 39"
containing exhibit '6' kept in a test tube. Exhibit '6' : Dark brown foul smelling liquid described as blood sample.
Parcel '7' : One sealed cloth parcel sealed with the seal of "CASUALTY MB HOSPITAL POOTH KHURD DELHI 39"
containing exhibit '7' kept in a test tube.
Exhibit '7' : Yellowish viscous foul smelling liquid described as semen sample.
Parcel '8' : One sealed cloth parcel sealed with the seal of "CASUALTY MB HOSPITAL POOTH KHURD DELHI 39"
containing exhibit '8'.
Exhibit '8' : One underwear. Parcel '9' : One sealed cloth parcel sealed with the
seal of "CASUALTY MB HOSPITAL POOTH KHURD DELHI 39"
containing exhibit '9' kept in a test tube.
Exhibit '9' : A few strands of hair.
32 of 71
33
FIR No. 163/09
PS Shahbad Dairy
Parcel '10' : One sealed cloth parcel sealed with the
seal of "CASUALTY MB HOSPITAL POOTH KHURD DELHI 39"
containing exhibit '10' kept in a test tube.
Exhibit '10' : A few nail clippings. Parcel '11' : One sealed cloth parcel sealed with the
seal of "CASUALTY MB HOSPITAL POOTH KHURD DELHI 39"
containing exhibit '11' kept in a test tube.
Exhibit '11' : Yellowish viscous foul smelling liquid described as semen sample.
Parcel '12' : One sealed cloth parcel sealed with the seal of "CASUALTY MB HOSPITAL POOTH KHURD DELHI 39"
containing exhibit '12' kept in a test tube. Exhibit '12' : Dark brown foul smelling liquid described as blood sample.
Parcel '13' : One sealed cloth parcel sealed with the seal of "CASUALTY MB HOSPITAL POOTH KHURD DELHI 39"
containing exhibit '13'.
Exhibit '13' : One underwear. Parcel '14' : One sealed cloth parcel sealed with the
seal of "CASUALTY MB HOSPITAL POOTH KHURD DELHI 39"
33 of 71 34 FIR No. 163/09 PS Shahbad Dairy containing exhibit '14' kept in a test tube.
Exhibit '14' : A few nail clippings. Parcel '15' : One sealed cloth parcel sealed with the
seal of "CASUALTY MB HOSPITAL POOTH KHURD DELHI 39"
containing exhibit '15' kept in a test tube.
Exhibit '15' : A bunch of hair described as pubic hairs.
RESULT OF ANALYSIS
1. Blood was detected on exhibits '1', '6' & '12'.
2. Blood could not be detected on exhibits '2', '3', '4' & '5'.
3. Human semen was detected on exhibits '5', '8' & '13'.
4. Semen could not be detected on exhibits '2', '3', '4', '9', '10', '14' & '15'.
5. Vaginal epithelial cells could not be detected on exhibits '8', '9', '10', '13', '14' & '15'.
6. Report of serological analysis in original is attached herewith. NOTE : Remnants of the exhibits have been sealed with the seal of 'NK FSL DELHI'.
The serological report Ex. 20/B reads as under: Exhibits Species of origin ABO Grouping/Remarks 34 of 71 35 FIR No. 163/09 PS Shahbad Dairy Blood Stains: '1' Blood sample Sample was putrefied hence no opinion '6' Blood sample Sample was putrefied hence no opinion '12' Blood sample Sample was putrefied hence no opinion Semen Stains: '5' Salwar 'A' Group '7' Semen sample Sample was putrefied hence no opinion '8' Underwear No reaction '11' Semen sample Sample was putrefied hence no opinion '13' Underwear No reaction On careful perusal and analysis of the biological and serological evidence on record, blood was detected on exhibit '1' (blood sample of prosecutrix), exhibit '6' (blood sample of accused Chaudhary Mukhiya) and exhibit '12' (blood sample of accused Bihari Mukhiya); blood could not be detected on exhibit '2' (Few nail clippings of the prosecutrix), exhibit '3' (pubic hair of the prosecutrix), exhibit '4' (vaginal swab of the prosecutrix) and exhibit '5' (salwar of the prosecutrix); Human semen was detected on exhibit '5' (salwar of the prosecutrix), exhibit '8' (underwear of accused Chaudhary Mukhiya) and exhibit '13' (underwear of accused Bihari Mukhiya); semen could not be 35 of 71 36 FIR No. 163/09 PS Shahbad Dairy detected on exhibit '2' (few nail clippings of the prosecutrix), exhibit '3' (pubic hair of the prosecutrix), exhibit '4' (vaginal swab of the prosecutrix), exhibit '9' (few strand of hair of accused Chaudhary Mukhiya), exhibit '10' (few nail clippings of accused Chaudhary Mukhiya), exhibit '14' (few nail clippings of accused Bihari Mukhiya) and exhibit '15' (pubic hairs of accused Bihari Mukhiya) and vaginal epithelial could not be detected on exhibit '8' (underwear of accused Chaudhary Mukhiya), exhibit '9' (few strands of hair accused Chaudhary Mukhiya), exhibit '10' (few nail clippings of accused Chaudhary Mukhiya), exhibit '13' (underwear of accused Bihari Mukhiya), exhibit '14' (few nail clippings of accused Bihari Mukhiya) and exhibit '15' (pubic hairs of accused Bihari Mukhiya). As per the serological report Ex. PW20/B 'Sample was putrefied hence no opinion' could be given on the exhibit '1' (Blood Sample of prosecutrix), '6' (Blood Sample of accused Chaudhary Mukhiya), '12' (Blood Sample of accused Bihari Mukhiya), '7' (Blood Sample of accused Chaudhary Mukhiya) and '11' (Blood Sample of accused Bihari Mukhiya).
On a conjoint reading of the medical evidence, the 36 of 71 37 FIR No. 163/09 PS Shahbad Dairy gynaecological examination from portion 'A' to 'A1' on MLC Ex. PW10/A of the prosecutrix together with the MLC of accused Bihari Mukhiya Ex. PW11/A and MLC of accused Chaudhary Mukhiya Ex. PW11/B and in the light of the biological and serological evidence detailed hereinabove, it clearly indicates the taking place of sexual intercourse activity.
In the circumstances, it stands clearly established on the record that sexual intercourse activity has taken place in the instant case.
As per the biological report Ex. PW20/A, with regard to the description of the articles contained in the parcels, it is noticed that Parcel No. 1 to 5 belongs to PW2 prosecutrix which were seized vide seizure memo Ex. PW2/B dated 06/07/2009, parcel nos. 6 to 10 belongs to accused Chaudhary Mukhiya which were seized vide seizure memo Ex. PW7/E dated 07/07/2009, and parcel no. 11 to 15 belongs to accused Bihari Mukhiya which were seized vide seizure memo Ex. PW7/F dated 07/07/2009.
As per the biological report Ex. PW20/A, prosecution has discharged its initial burden of proving the presence of Human semen 37 of 71 38 FIR No. 163/09 PS Shahbad Dairy on exhibit '5' (salwar of the prosecutrix seized vide seizure memo Ex. PW2/B), exhibit '8' (underwear of accused Chaudhary Mukhiya seized vide seizure memo Ex. PW7/E) and exhibit '13' (underwear of accused Bihari Mukhiya seized vide seizure memo Ex. PW7/F). Accused was under an obligation to explain how and under what circumstances, the Human semen came to be present on the said exhibits '5' '8' and '13' as detailed hereinabove. The absence of such an explanation both in the section 313 Cr.P.C. statements of the accused Bihari Mukhiya and Chaudhary Mukhiya and their omission to lead any evidence in this regard and their complete denial becomes an additional link in the prosecution case.
17. Learned Counsel for the accused submitted that FSL Report does not support the prosecution case.
I have carefully gone through the evidence on record. As to what has been discussed, detailed and analysed under the heading "Biological and Serological Evidence" hereinabove, in the circumstances, there is no substance in the plea so raised by the Learned 38 of 71 39 FIR No. 163/09 PS Shahbad Dairy Counsel for the accused.
18. Now let the testimony of PW2 Prosecutrix be perused and analysed.
PW2 prosecutrix, in her examinationinchief has deposed which is reproduced and reads as under : "It was of last year approximate one and half year. On the th day of 4 month I do not remember, I was working in a kothi at Kamla Nagar as a maid servant I was got employed by one Pritam. Where I was working in front of the said kothi, one boy namely Raju since PO was used to work, he enticed me to marry with me on this pretext, he took me to Alipur in a bus. He took me in the fields of village Alipur where both the accused persons (correctly identified) already present there where all the three persons including Raju and both the accused persons committed rape on me turn by turn. I was detained by the accused persons for the purpose of rape on a whole night on the day of incident. On the next day, I was got boarded by the accused persons in a metro and Chaudhary Mukhiya. One of the stations I alight where one lady namely Sunita met me there who took me to the Police Station where I was interrogated and my statement was recorded Ex. PW2/A which bears my thumb impression at point 'A'. Thereafter, Police took me to the Hospital for medical examination and after the medical examination some sealed parcels were given to the IO which were taken into possession vide memo Ex. PW2/B which bears my thumb impression at point 'A'. I do not remember whether my statement was recorded by Ld. MM or not."
39 of 71 40 FIR No. 163/09 PS Shahbad Dairy During the leading question put by the Learned Addl. PP for the State PW2 - Prosecutrix deposed that : "It is correct that due to passage of time, I do not able to recollect that my statement was recorded by the Magistrate."
From the aforesaid narration of PW2 - prosecutrix, it is clear that approximately one and half year back on the day of 4th, month she does not remember, she was working in a kothi at Kamla Nagar as a maid servant she was got employed by one Pritam. Where she was working in front of the said kothi, one boy namely Raju since PO was used to work, he enticed her to marry with her on this pretext, he took her to Alipur in a bus. He took her in the fields of village Alipur where both the accused persons (correctly identified) already present there where all the three persons including Raju and both the accused persons committed rape on her turn by turn. She was detained by the accused persons for the purpose of rape on a whole night on the day of incident. On the next day, she was got boarded by the accused persons in a metro and Chaudhary Mukhiya. One of the stations she alight where one lady namely Sunita met her there who took her to the Police Station where she was interrogated and her statement was recorded Ex. PW2/A which bears her thumb impression at point 'A'. Thereafter, Police took her to 40 of 71 41 FIR No. 163/09 PS Shahbad Dairy the Hospital for medical examination and after the medical examination some sealed parcels were given to the IO which were taken into possession vide memo Ex. PW2/B which bears her thumb impression at point 'A'. She does not remember whether her statement was recorded by Learned MM or not.
PW2 - Prosecutrix during her crossexamination has negated the suggestions that she eloped with Ranjit and married after running from the house or that there were no agricultural field on either side of the Alipur Bus Stand or that she was not raped by the accused persons and that is why she did not tell the place where accused met her or took her or that no such incident ever happened or that accused Raju (now P.O.) was already married and Bihari and Chaudhary being from the same village considered his wife as their sister and it was due to their persistence that accused Raju refused to marry her (prosecutrix), hence to take revenge she has falsely implicated the accused persons present in the Court and accused Raju (P.O.) or that she is deposing falsely.
Inspite of incisive crossexamination nothing material has 41 of 71 42 FIR No. 163/09 PS Shahbad Dairy 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 testimony of PW2 - Prosecutrix on careful perusal and analysis is found to be clear, natural, cogent, convincing, trustworthy and inspiring confidence. The version of this witness on the core spectrum of the crime has remained intact. There is nothing in her statement to suggest that she had any animus against the accused to falsely implicate them in the case.
The testimony of PW2 - Prosecutrix is also found to be corroborated by the medical evidence and the biological and serological evidence as discussed hereinbefore.
The testimony of PW2 - Prosecutrix is also found to be in consonance with her statement Ex. PW2/A made to the Police.
The testimony of PW2 - Prosecutrix is also found to be corroborated by PW4 - Khedia Fagu, her father in material particulars as well as by PW15 - Ms. Seema, to whom 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 42 of 71 43 FIR No. 163/09 PS Shahbad Dairy Evidence Act, 1872.
PW4 - Khedia Fagu, father of the prosecutrix in his examinationinchief has deposed that : "My daughter/prosecutrix (name withheld) along with her husband came to Delhi in the year 2009. After about 2 ½ months later, I received information that my daughter was recovered by the police officials of PS Shahbad Dairy. I came Delhi and met my daughter at Child Welfare Home, Tihar Jail. Later on, she was released by the Court to me on Superdari. The real name of my daughter/prosecutrix was prosecutrix (name withheld). She was born on 07/12/1984 in the of New Lands Hospital. I have given the birth certificate of my daughter Budh Rani khadia which was taken into possession by the IO vide memo Ex. PW4/A and I had put my left hand thumb impression at point A. Certificate is Ex. PX and I do not know whether it is the same certificate which I had handed over to the police.
During the leading question put by the Learned Addl. PP for the State PW4 - Khedia Fagu deposed that : "The certificate Ex. PX was shown to the witness and he still is saying that I do not remember whether the certificate is the same which was given by me to the police. However, the date of birth of my daughter Budh Rani is 07.12.1984."
From the aforesaid narration of PW4 - Khedia Fagu, it is 43 of 71 44 FIR No. 163/09 PS Shahbad Dairy clear that the his daughter/prosecutrix (name withheld) along with her husband came to Delhi in the year 2009. After about 2½ months later, he received information that his daughter was recovered by the police officials of PS Shahbad Dairy. He came Delhi and met his daughter at Child Welfare Home, Tihar Jail. Later on, she was released by the Court to him on Superdari. The real name of my daughter/prosecutrix was prosecutrix (name withheld). She was born on 07.12.1984 in the of New Lands Hospital. He had given the birth certificate of his daughter/prosecutrix (name withheld) which was taken into possession by the IO vide memo Ex. PW4/A and he had put his left hand thumb impression at point 'A'. Certificate is Ex. PX and he does not know whether it is the same certificate which he had handed over to the Police.
During his crossexamination PW4 - Khedia Fagu has negated the suggestions that he did not come to Delhi or that (not) handed over the birth certificate to the Police or that he got (not) released his daughter on superdari or that he is deposing falsely.
PW15 - Seema in her examinationinchief has deposed that : 44 of 71 45 FIR No. 163/09 PS Shahbad Dairy "In the year, 2009, I was working as Para Legal Worker in Nav Shritshi (Shrishti) NGO having Office at Holamni (Holambi) Kalan, Metro Vihar, Delhi. On 05/07/2009 when I was going to my Office at Metro Vihar Bus in the morning hours. I saw a girl was sitting at Metro Vihar Bus Stand and after noticing her I went to my office. On the same evening when I was coming from my office, I saw that girl was still sitting at Metro Vihar Bus stand I asked to that girl the reason for her sitting since morning whose name revealed as prosecutrix (name withheld) later on. She stated that she was left at the bus stand by Raju saying that he was going in search of a rented room. She further stated that Raju brought her on 04/07/2009 and he kept her in Alipur on that night and left her in the morning at bus stand Metro Vihar. She was taken to the Police Post Metro Vihar at about 6:00/7:00 p.m. on that day and all the circumstances were narrated to the Incharge Police Post. As there was no lady Police official was available in the Police Post, prosecutrix (name withheld) stayed with me in my house on that night. On the next day in the morning prosecutrix (name withheld) was taken to Police Station - Shahbad Dairy and our Incharge Nazma Khatoon was also informed who also reached there and from there we were sent to Police Station - Alipur by the officials of PS - Shahbad Dairy. On the same day prosecutrix (name withheld) had pointed out the agriculture field situated in the jurisdiction of Police Station - Alipur. Police recorded the statement of prosecutrix (name withheld)."
From the aforesaid narration of PW15 - Seema, it is clear that the in the year, 2009, she was working as Para Legal Worker in Nav Shrishti NGO having Office at Holambi Kalan, Metro Vihar, Delhi. On 45 of 71 46 FIR No. 163/09 PS Shahbad Dairy 05/07/2009 when she was going to her Office at Metro Vihar Bus in the morning hours, she saw a girl was sitting at Metro Vihar Bus Stand and after noticing her she (PW15) went to her office. On the same evening when she was coming from her office, she saw that girl was still sitting at Metro Vihar Bus stand she asked that girl the reason for her sitting since morning whose name revealed as prosecutrix (name withheld) later on. She (prosecutrix) stated that she was left at the bus stand by Raju saying that he was going in search of a rented room. She (prosecutrix) further stated that Raju brought her on 04/07/2009 and he kept her in Alipur on that night and left her in the morning at bus stand Metro Vihar. She (prosecutrix) was taken to the Police Post Metro Vihar at about 6:00/7:00 p.m. on that day and all the circumstances were narrated to the Incharge Police Post. As there was no lady Police official available in the Police Post, prosecutrix (name withheld) stayed with her (PW15) in her (PW15) house on that night. On the next day in the morning prosecutrix (name withheld) was taken to Police Station - Shahbad Dairy and their In charge Nazma Khatoon was also informed who also reached there and from there they were sent to Police Station - Alipur by the officials of PS
- Shahbad Dairy. On the same day prosecutrix (name withheld) had 46 of 71 47 FIR No. 163/09 PS Shahbad Dairy pointed out the agriculture field situated in the jurisdiction of Police Station - Alipur. Police recorded the statement of prosecutrix (name withheld).
Inspite of incisive crossexamination of PW4 - Khedia Fagu and PW15 - Ms. Seema, nothing material has been brought out so as to impeach their creditworthiness. They have withstood the rigors of cross examination without being shaken. Their testimonies on careful perusal and analysis are found to be natural, clear, reliable, inspiring confidence and having a ring of truth. There is nothing in their statements to suggest that they had any animus against the accused Bihari Mukhiya and Chaudhary Mukhiya to falsely implicate them in the case.
19. While analysing the testimony of PW2 - Prosecutrix and PW4 - Khedia Fagu, her father as discussed hereinabove inspite of incisive crossexamination of PW2 - Prosecutrix and PW4 - Khedia Fagu nothing has come out in their statements which may throw even a slightest doubt on the prosecution version of the incident. Though the suggestion by the defence to PW2 Prosecutrix that she eloped with 47 of 71 48 FIR No. 163/09 PS Shahbad Dairy Ranjit and married after running from the house or that there were no agricultural field on either side of the Alipur Bus Stand or that she was not raped by the accused persons and that is why she did not tell the place where accused met her or took her or that no such incident ever happened or that accused Raju (now P.O.) was already married and Bihari and Chaudhary being from the same village considered his wife as their sister and it was due to their persistence that accused Raju refused to marry her (prosecutrix), hence to take revenge she has falsely implicated the accused persons present in the Court and accused Raju (P.O.) or that she is deposing falsely and the suggestions to PW4 - Khedia Fagu that he did not come to Delhi or that (not) handed over the birth certificate to the Police or that he got (not) released his daughter on superdari or that he is deposing falsely, were put, which were negated by the said PWs but the same have not at all being made probable much established by any cogent evidence. Further, there is not an iota of evidence or even a suggestion that the accused have been falsely implicated because of animosity.
However, a futile attempt has been made by the accused Chaudhary Mukhiya to save his skin from the clutches of law by way of 48 of 71 49 FIR No. 163/09 PS Shahbad Dairy examination of DW1 - Sh. Shatrughan Kamant S/o Sh. Shiv Dhari Kamant R/o 3948, Ist Floor, Naya Bazar, Delhi - 110006.
DW1 Sh. Shatrughan Kamant in his examinationinchief has deposed that Chaudhary Mukhiya son of Sh. Upender Mukhiya is his nephew (Banja). On 04/07/2009 at about 10:00 11:00 a.m. accused Chaudhary Mukhiya came to him at his above said address. He came there to purchase a bicycle. He (DW1) got him purchased an old bicycle. He remained with him (DW1) through (out) the day. Thereafter, next morning at about 11:00 - 12:00 noon he left his premises along with bicycle after taking the break fast. After about 1015 days he (PW15) came to know regarding the arrest of accused in the case. Thereafter on enquiry they came to know about his confinement in Rohini Jail. They got the details of the case and thereafter concerned SHO was visited by him (DW1) along with some other persons. When he (DW1) pleaded innocence of the accused before the SHO, he (SHO) said that as the case has been registered therefore, he (SHO) cannot help and whatever grievances they are having they should plead before the Court. Today, he (DW1) is in the Court to depose truth which is in his personal knowledge.
49 of 71 50 FIR No. 163/09 PS Shahbad Dairy During his crossexamination by Learned Addl. PP for the State, DW1 - Sh. Shatrughan Kamant has deposed which is reproduced and reads as under : "I am not a summoned witness. Accused Chaudhary Mukhiya was doing the work in the fields (khet mein kaam karta tha) in Holambi Kalan for the last about 45 years. He was residing in the fields in Holambi Kalan. Bihari Mukhiya accused present in the court today was also residing in the same fields in Holambi Kalan with accused Chaudhary Mukhiya. One Raju who was the resident of the nearby village of accused Chaudhary Mukhiya was known to Chaudhary Mukhiya. I myself had sold the old cycle to Chaudhary Mukhiya. No documents were prepared regarding the sale of the old cycle. It is wrong to suggest that I have not sold any cycle to Chaudhary Mukhiya and that is why we have not prepared any document regarding the sale of the cycle. Even, I am not having any bill of the said cycle. I am regularly visiting in the Court on each and every date of the present case to meet accused Chaudhary Mukhiya. I am also regularly visiting to accused Chaudhary Mukhiya in jail to meet him. I have not made any complaint to the senior police officials that accused Chaudhary Mukhiya has been falsely implicated in the present case. It took about 1/1 ½ hours in reaching from Holambi Kalan to Naya Bazar. It is wrong to suggest that on 04/07/2009, accused Chaudhary Mukhiya has not visited at my house and did not stay there on that day. It is wrong to suggest that I am deposing falsely to save the accused as he is my Bhanja."
On careful perusal and analysis of the testimony of DW1 -
50 of 71 51 FIR No. 163/09 PS Shahbad Dairy Shatrughan Kamanth, it is found that the "theory of purchase of an old bicycle by accused Chaudhary Mukhiya" and the "theory that on 04/07/2009 at about 10:00 - 11:00 a.m., accused Chaudhary Mukhiya came to him and left on the next morning at about 11:00 - 12:00 noon" as propounded by DW1 - Shatrughan Kamanth in his examinationinchief by deposing that, "On 04.07.09 at about 1011 am accused Chaudhary Mukhiya came to me at my above said address. He came there to purchase a bicycle. I got him purchased an old bicycle. He remained with me through (out) the day. Thereafter next morning at about 1112 noon he left my premises along with bicycle after taking the break fast" are not being supported by him during his crossexamination as he is blowing hot and cold in one breath, during his examinationin chief he is deposing that he got him purchased an old bicycle while in his crossexamination he has deposed, "I myself had sold the old cycle to Chaudhary Mukhiya. No documents were prepared regarding the sale of the old cycle. It is wrong to suggest that I have not sold any cycle to Chaudhary Mukhiya and that is why we have not prepared any document regarding the sale of the cycle. Even, I am not having any bill of the said cycle".
51 of 71 52 FIR No. 163/09 PS Shahbad Dairy DW1 during his crossexamination has deposed that : "I have not made any complaint to the senior police officials that accused Chaudhary Mukhiya has been falsely implicated in the present case".
If DW1 - Shatrughan Kamanth was the Uncle of accused Chaudhary Mukhiya and knew that he has been falsely implicated in the present case, then why he did not make any complaint to the Senior Police Officials. No explanation in this regard has been given by DW1 - Shatrughan Kamanth.
Moreover, the suggestions regarding the abovesaid theories, so propounded by DW1 - Shatrughan Kamanth during his examination inchief were neither put/suggested to PW2 - prosecutrix during her incisive crossexamination nor to any other witness. In the circumstances, it appears that the theories, so propounded by DW1 - Shatrughan Kamanth are merely an afterthought and have been propounded in order to save the skin of his nephew/accused Chaudhary Mukhiya from the clutches of law.
In view of above and in the circumstances, it clearly indicates that DW1 - Shatrughan Kamanth is a procured witness. His 52 of 71 53 FIR No. 163/09 PS Shahbad Dairy testimony does not inspires confidence.
20. Learned Counsel for the accused submitted that accused Chaudhary Mukhiya opted to lead defence evidence and examined DW1 Shatrughan Kamant who has deposed against the prosecution story and submitted that on the day of occurrence the accused Chaudhary Mukhiya came to him in the morning hours and remained with him till next day, therefore his involvement in the crime is impossible. His testimony remained unshaken on the presence of the accused on the day of incident with him. Moreover suggestion of the Learned Prosecutor that the accused did not visit him on 04/07/2009 was denied by him and further suggestion that he is deposing falsely to save his Bhanja was also denied by the witness.
I have carefully perused and analysed the evidence on record.
In view of the discussion and analysis of the testimony of DW1 - Shatrughan Kamanth, made hereinabove, in the circumstances, the plea so raised by the Learned Counsel for the accused does not hold water and is found to have no substance.
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21. It is well settled that rape, is crime and not a medical condition. Rape is a legal term and not a diagnosis to be made by the medical officer treating the victim.
It is to be noticed that the opinion expressed by Modi in Medical jurisprudence and Toxicology (Twenty First Edition) at page 369 which reads as : "Thus to constitute the offence of rape it is not necessary that there should be complete penetration of penis with emission of semen and rupture of hymen. Partial penetration of the penis within the labia majora or the vulva or pudenda with or without emission of semen or even an attempt at penetration is quite possible to commit legally the offence of rape without producing any injury to the genitals or leaving any seminal stains. In such a case the medical officer should mention the negative facts in his report, but should not give his opinion that no rape had been committed. Rape, is crime and not a medical condition. Rape is a legal term and not a diagnosis to be made by the medical officer treating the victim. The only statement that can be made by the 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 54 of 71 55 FIR No. 163/09 PS Shahbad Dairy Toxicology, the following passage is found : "Sexual intercourse : In law, this term is held to mean the slightest degree of penetration of the vulva by the penis with or without emission of semen. It is therefore quite possible to commit legally the offence of rape without producing any injury to the genitals or leaving any seminal stains."
In Encyclopedia of Crime and Justice (Vol. 4) at page 1356, it is stated : ".....even slight penetration is sufficient and emission is unnecessary."
On analysing the testimony of PW2 - Prosecutrix in the light of medical evidence, biological and serological evidence, gynaecological examination from portion 'A' to 'A1' on MLC Ex. PW10/A of the prosecutrix together with the MLC of accused Bihari Mukhiya Ex. PW11/A and MLC of accused Chaudhary Mukhiya Ex. PW11/B, as discussed hereinbefore, the act of sexual intercourse activity by complete penetration of penis with emission of semen or by partial penetration of the penis with emission of semen, within labia majora or the vulva or pudenda stands proved.
55 of 71 56 FIR No. 163/09 PS Shahbad Dairy In the circumstances, it stands clearly established on the record, of the performance of the act of sexual intercourse by accused Bihari Mukhiya and Chaudhary Mukhiya with PW2 - Prosecutrix without her consent.
22. Learned Counsel for the accused submitted that the scrutiny of the statement given by PW2 Prosecutrix reveals that she is major, illiterate and a married woman, who was known to one accused Raju (PO). Accused Bihari Mukhiya and Chaudhary Mukhiya were not known to her. However, they were known to the other accused Raju. During her deposition before the Court she admitted that she had already married to one Ranjeet against the wishes of her parents. This fact raises doubt towards the act and behaviour of the complainant, when she is married even thereafter she developed friendship of male i.e. Accused Raju and thereafter on the pretext of marriage she left her work place without telling anyone after taking all her belongings. Place where she was taken by the accused Raju was far away from her work place she went there by public transport and she went through public places for reaching the alleged place of incident but she did not raise her voice for 56 of 71 57 FIR No. 163/09 PS Shahbad Dairy help anywhere. This all shows that she was having good relations with Raju and left her work place as per her sweet will and did all the acts willingly with him. This notion further get support from the testimony of PW17, who said during her deposition before the Court that when she came back to her house she did not find her maid in her home and her belongings were also missing. Moreover in the last line of her cross examination she said that Police of Shahbad Dairy informed her verbally that her maid had run away with a boy namely Raju.
I have carefully perused and analysed the evidence on record.
As discussed hereinbefore, the testimony of PW2 - prosecutrix is found to be natural, clear, cogent, reliable and inspiring confidence.
On careful perusal and analysis of the testimony of PW2 - prosecutrix, in her entire testimony, there is no circumstance which raises any doubt towards her act and the behaviour. Failure on her part to raise hue and cry at the time when she was taken by public transport, the reasons for the same has been explained by PW2 - prosecutrix in her examinationinchief wherein she has specifically deposed that Raju 57 of 71 58 FIR No. 163/09 PS Shahbad Dairy enticed her to marry with her and on this pretext he took her away. Moreover, it is not made clear by the Learned Counsel for the accused as to what benefit he intends to reap by raising the said plea, when the testimony of PW2 - prosecutrix is consistent throughout and has withstood the rigors of incisive crossexamination. Moral values attempted to be raised by this plea has no substance in the circumstances of the case.
PW2 - prosecutrix in her examinationinchief has categorically deposed that Raju enticed her to marry with her and on this pretext he took her away and thereafter, the crime was committed upon her, not only by Raju but by his associates/co accused Bihari Mukhiya and Chaudhary Mukhiya.
It is pertinent to reproduce the relevant part of the examinationinchief of PW2 - prosecutrix recorded on 16/10/2010, which reads as under : "It was of last year approximate one and half year. On the day of 4th month I do not remember, I was working in a kothi at Kamla Nagar as a maid servant I was got employed by one Pritam. Where I was working in front of the said kothi, one boy namely Raju since PO was used to work, he enticed me to marry with me on this pretext, he 58 of 71 59 FIR No. 163/09 PS Shahbad Dairy took me to Alipur in a bus. He took me in the fields of village Alipur where both the accused persons (correctly identified) already present there where all the three persons including Raju and both the accused persons committed rape on me turn by turn. I was detained by the accused persons for the purpose of rape on a whole night on the day of incident."
During her crossexamination recorded on 26/08/2011, PW2
- prosecutrix has deposed which is reproduced and reads as under : "I belong to West Bengal. I came to Delhi approximately two years before the incident. My father generally remains at house and not working anywhere. I am illiterate. We are eight brothers and sisters. I came to Delhi with agent. I am already married and the name of my husband is Ranjit. My husband used to work in the field of tea. It is wrong to suggest that I eloped with Ranjit and married after running from the house. It is correct to suggest that my marriage was solemnized by the parents of Ranjit and my parents did not attend marriage. It is correct that I came to Delhi from my matrimonial house. It is correct that since the date I got married with Ranjit I had no connection with my parents. I neither call them nor write any letter nor talk to them."
"I met my husband Ranjeet once after I was employed at Kamla Nagar Kothi. I had never talk to my husband on telephone"
In the circumstances, there is no substance in the plea so raised by the Learned Counsel for the accused.
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23. Learned Counsel for the accused submitted that during her cross examination Prosecutrix said she did not receive any injury during the alleged act. Which shows that she was not subjected to any forceful act.
I have carefully perused and analysed the evidence on record.
The testimony of PW2 - prosecutrix, her medical evidence, biological and serological evidence has been discussed hereinabove and it clearly stands established on the record, of the performance of the act of sexual intercourse by accused Bihari Mukhiya, Chaudhary Mukhiya and Raju (PO) with PW2 - Prosecutrix without her consent.
Emission of semen or leaving of seminal stains or producing of any injury to the genitals is not necessary to constitute the offence of rape. Complete penetration or partial penetration of penis within the labia majora or the vulva or pudenda 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. (Vide Modi in Medical jurisprudence and Toxicology 60 of 71 61 FIR No. 163/09 PS Shahbad Dairy (Twenty First Edition) at page 369 & Parikh's Textbook of Medical jurisprudence and Toxicology).
Explanation appended to Section - 375 IPC clearly provides penetration is sufficient to constitute the sexual intercourse necessary to the offence of rape.
It is also to be noticed that in case, 'Ranjit Hazarika Vs. State of Assam', (1998) 8 SCC 635, the Hon'ble Supreme Court observed that nonrupture of hymen or absence of injury on victim's private parts does not belie the testimony of the prosecutrix.
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 during her examination PW2 Prosecutrix stated that she met a lady from NGO namely Sunita whereas prosecution story is that one lady namely Seema met her at Metro Station. No witness with name Sunita ever appeared as witness of prosecution.
I have carefully perused and analysed the evidence on record.
61 of 71 62 FIR No. 163/09 PS Shahbad Dairy No doubt, PW2 - prosecutrix in her examinationinchief has deposed of meeting one lady namely Sunita (NGO). It is also not in dispute that PW9 - Smt. Nazma Khan, NGO Councellor, Nav Shrishti and PW15 - Ms. Seema, Paralegal Worker in Nav Shrishti NGO have been examined.
On careful perusal and analysis of the testimonies of PW9 - Smt. Nazma Khan, NGO Councellor, Nav Shrishti and PW15 - Ms. Seema, Paralegal Worker in Nav Shrishti NGO, the same are found to be in consonance with the testimony of PW2 - prosecutrix besides being natural, clear, cogent, reliable and having a ring of truth.
Sight cannot be lost of the fact that PW2 - prosecutrix in an helpless condition was sitting at the Metro Station and it may be that due to her condition or helplessness, the name Sunita may have retained in her memory in place of Seema. Such minor discrepancy does not falsify the case of the prosecution which is otherwise proved on record by clear, cogent and convincing evidence. Nor does it vitiate or negate the case of the prosecution. The version of the prosecutrix on the core spectrum of crime has remained intact.
62 of 71 63 FIR No. 163/09 PS Shahbad Dairy The Hon'ble Supreme Court in 'Bharwada Bhoginbhai Hirjibhai Vs. State of Gujrat' (1983) 3 SCC 217, has held much importance cannot be attached to minor discrepancies for the reasons :
1) By and large a witness cannot be expected to possess a photographic memory and to recall the details of an incident. It is not as if a video tape is replayed on mental screen; 2) Ordinarily it so happens that a witness is overtaken by events. The witness could not have anticipated the occurrence which so often has an element of surprise. The mental faculties therefore cannot be expected to be attuned to absorb the details.
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.
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 PW7 Constable Shakeel who allegedly joined the investigation submits in his examinationinchief that he joined the investigation on 07/07/2009 and they went to Village Holambi Kalan i.e. Place of occurrence, on same day and arrested two accused and prosecutrix pointed out place of occurrence there. Whereas other witness allegedly joined the investigation regarding arrest and pointing out of place of occurrence says that they joined investigation on 06/07/2009 and they went to Alipur i.e. The place of occurrence. Which creates doubt about the place of occurrence. Further, it is important that during his cross examination he submitted that when they were in search of the accused persons, the prosecutrix was not sure about the place of occurrence. Which further raises suspicion that prosecutrix has misled the investigating agency just to meet her objectives i.e. Revenge from Raju for not marrying her. Whereas the IO of the case PW8 ASI Anil Kumar deposed that they went to place of occurrence on 06/07/2013. During crossexamination PW7 says he joined investigation at about 9:00 - 9:30 a.m. and reached Holambi Kalan i.e. Place of occurrence at about 10:30 - 11:00 a.m. on 07/07/2009, whereas, PW8 during his crossexamination said that on 64 of 71 65 FIR No. 163/09 PS Shahbad Dairy 06/07/2009 he left the PS alongwith one Seema and Prosecutrix for the place of occurrence at 06.15 PM.
I have carefully perused and analysed the evidence on record.
On careful perusal and analysis of the testimonies of PW7 - Constable Shakeel, PW8 - ASI Anil Kumar and PW2 - prosecutrix, there is no discrepancy regarding the date of joining the investigation as on 07/07/2009. The arrest memos of both accused Chaudhary Mukhiya and Bihari Mukhiya Ex. PW7/A and Ex. PW7/B respectively and their personal search memos Ex. PW7/C and Ex. PW7/D respectively, are all dated 07/07/2009 and the seizure memo of the sealed exhibits of accused Chaudhary Mukhiya and Bihari Mukhiya Ex. PW7/E and Ex. PW7/F respectively are also dated 07/07/2009 and the site plan Ex. PW8/A prepared by the PW8 IO ASI Anil Kumar is also dated 07/07/2009. The disclosure statements of accused Chaudhary Mukhiya and that of accused Bihari Mukhiya Ex. PW8/C and Ex. PW8/B respectively are also both dated 07/07/2009.
Further, the plea raised by the Learned Counsel for the accused that the prosecutrix was misleading the Investigating Agency 65 of 71 66 FIR No. 163/09 PS Shahbad Dairy regarding the place of occurrence, has not substance as to what has been deposed by PW7 - Constable Shakeel and PW8 - ASI Anil Kumar clearly during their examinationinchief.
It is pertinent to reproduce the relevant part of the examinationinchief of PW7 - Constable Shakeel which reads as under : "On 07/07/2009 I was posted at PS - Shahbad Dairy. On that day, I joined the investigation of this case along with ASI Anil Kumar. On that day, I along with an NGO Smt. Seema, prosecutrix and IO went to agricultural field of village Holambi Kalan. After roaming the agricultural field the prosecutrix (name withheld) had pointed out the agricultural field where both the accused persons present in the Court today were identified by the prosecutrix and stated that both the accused persons along with one more accused person namely Raju has (had) committed rape upon her. Both the accused persons are present in the Court (correctly identified). Accused persons were arrested vide arrest memo Ex. PW7/A and PW7/B signed by me at point 'A'. Their personal search memo was also prepared vide memo Ex. PW7/C, signed by me at point 'A'."
It is pertinent to reproduce the relevant part of the examinationinchief of PW8 - ASI Anil Kumar which reads as under : "I took to the witness Seema and complainant with me, who pointed out the place of occurrence i.e. a room situated in the agriculture 66 of 71 67 FIR No. 163/09 PS Shahbad Dairy field at Village Holambi Khurd. At complainant instance site plan Ex. PW8/A was prepared by me and signed by me at point 'A'. In the field two laborer were found working there and both were identified by the complaint (complainant)/(name withheld) were the persons who had committed who had committed rape upon me (her). At her instance both were apprehended. After interrogation both the accused revealed their names as Bihari Mukhiya and Chaudhary Mukhiya. Both were arrested vide memo Ex. PW7/A and Ex. PW7/B signed by me at point 'B' respectively. Personal search memo were prepared vide memo Ex. PW7/C and Ex. PW7/D signed by me."
There is nothing in the crossexamination of PW7 - Constable Shakeel and PW8 - ASI Anil Kumar so as to impeach their creditworthiness. They have withstood the rigors of crossexamination without being shaken. There is nothing in their statements to suggest that they had any animus against the accused to falsely implicate them in the case.
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.
67 of 71 68 FIR No. 163/09 PS Shahbad Dairy '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.
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 PW15 Ms. Seema is the first person who allegedly came into contact with the prosecutrix after the incident and remained with her on the night of 04/07/2009 at her house. During her crossexamination she said, "Name of Bihari Mukhiya and Chaudhary Mukhiya were not heard by me either during the period when I remained with Prosecutrix or at the time when she had gone to the agriculture field at Alipur or at any time thereafter. It is correct that I had not heard from Prosecutrix that any 68 of 71 69 FIR No. 163/09 PS Shahbad Dairy person had committed Galat Kaam (Wrong Act) or committed rape upon her at any stage".
I have carefully perused and analysed the evidence on record.
At the cost of repetition, the testimony of PW2 - prosecutrix has been reproduced, discussed and analysed hereinbefore and the same is found to be natural, clear, cogent, reliable and convincing. Inspite of incisive crossexamination nothing material has been brought out so as to impeach her creditworthiness. Her version on the core spectrum of crime has remained intact.
It is not made clear by the Learned Counsel for the accused as to what benefit he intends to reap by raising the said plea. The testimony of PW15 - Ms. Seema, has been reproduced, discussed and analysed hereinbefore which on careful perusal and analysis has been found to be natural, clear, inspiring confidence and having a ring of truth. She has withstood the rigors of crossexamination without being shaken. There is nothing in her statement to suggest that she had any animus against the accused to falsely implicate them in the case.
In the circumstances, there is no substance in the plea so 69 of 71 70 FIR No. 163/09 PS Shahbad Dairy raised by the Learned Counsel for the accused.
27. In view of above and in the circumstances, prosecution has thus categorically proved beyond shadows of all reasonable doubts that on 04/07/2009 at the fields at Alipur accused Bihari Mukhiya and Chaudhary Mukhiya alongwith coaccused Raju Mukhiya (since declared PO) committed gang rape on PW2 prosecutrix (name withheld) aged about 25 years (to be exact 24 years, 06 months and 27 days) turn by turn without her consent and against her will.
I accordingly hold accused Bihari Mukhiya and Chaudhary Mukhiya guilty for the offence punishable u/s 376(2)(g) IPC and convict them thereunder.
28. In view of above discussion, I am of the considered opinion that as far as the involvement of the accused Bihari Mukhiya and Chaudhary Mukhiya in the commission of the offence u/s 376(2)(g) 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 Bihari Mukhiya and 70 of 71 71 FIR No. 163/09 PS Shahbad Dairy Chaudhary Mukhiya beyond shadows of all reasonable doubts and there is no room for hypothesis, consistent with that of innocence of accused. I, therefore, hold accused Bihari Mukhiya and Chaudhary Mukhiya guilty for the offence punishable u/s 376(2)(g) IPC and convict them thereunder.
Announced in the open Court (MAHESH CHANDER GUPTA) on 25th Day of October, 2013 Additional Sessions Judge Special Fast Track Court (N/W District), Rohini, Delhi 71 of 71