Delhi District Court
State vs . 1. Bablu on 24 September, 2013
1
FIR No. 118/09
PS - S. P.Badli
IN THE COURT OF SH. MAHESH CHANDER GUPTA :
ADDITIONAL SESSIONS JUDGE : SPECIAL FAST TRACK
COURT : NORTHWEST DISTRICT : ROHINI : DELHI
SESSIONS CASE NO. : 29/13
Unique ID No. : 02404R0225182009
State Vs. 1. Bablu
S/o Ram Pal
R/o House of Sher Singh,
Village Badli,
Delhi.
FIR No. : 118/09
Police Station : S. P. Badli
Under Sections : 363/376 IPC
Date of committal to session Court : 25/09/2009
Date on which judgment reserved : 16/09/2013
Date on which judgment announced : 24/09/2013
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 : 1 of 81 2 FIR No. 118/09 PS - S. P.Badli That on 25/05/2009, after receipt of PCR Call SI Varun Dalal alongwith Constable Bhishm reached at Sher Singh Ka Makan, Village Badli where the complainant was not met. SI Varun Dalal while making inquiries in the nearby area, reached at Ramlila Maidan, Village Badli where Krishna S/o Govind met and his wife Pushpa, neighbour Vijay, Dinesh and Pradeep also met who handed over Bablu S/o Rampal. Bablu was kept under the supervision of Constable Bhishm and the prosecutrix (name withheld being a case u/s 376 IPC) was kept by SI Varun Dalal under his supervision in the meantime W/Constable Maya and Constable Rajesh also reached there. The prosecutrix was made to wear another underwear (Kachhi) and she was kept under the supervision of W/Constable Maya. Complainant Krishna made the statement which is to the effect that, he lives at the given address and is a rickshaw pullar. On 24/05/2009, her daughter/ prosecutrix aged three years at about 8:30 p.m. was playing outside the house and he was also standing outside the house and at that time his neighbour Bablu who lives opposite to his house came to her daughter/prosecutrix and started playing with her (khilane lag gaya) and then he (complainant) told him (Bablu) that it is too dark (kaafi raat ho gayi), let her daughter be given to him and he 2 of 81 3 FIR No. 118/09 PS - S. P.Badli (Bablu) also go to sleep on which he (Bablu) asked him (complainant) to go and he (Bablu) will leave the prosecutrix at his (complainant's) house. He (complainant) left prosecutrix in the company of him (Bablu) and waited for long but Bablu did not come to the house. Then, he (complainant) went out and saw that Bablu and her daughter/prosecutrix were not there. They were searched but could not be found. He (complainant) searched them here & there (aas pass), but they could not be found. Then, he (complainant) on 24/05/2009, phoned on no. 100 and the police came there. Police also made search but her daughter could not be found and he (complainant) said that at present he does not want any legal action and tries to trace her by his own means (apne taur par talash kar leta hu). On 25/05/2009, when he (complainant) saw Bablu at about 7:00 a.m. in the morning, going to his room asked him where his daughter is but he (Bablu) could not give any satisfactory reply. When he (complainant) collected nearby persons (aas pass ke logon ko ikattha kiya) and asked Bablu by pressurizing him (dabav daal kar pucha). Then, Bablu told that he has kept concealed prosecutrix in Ramleela Maidan, Village Badli. On which, complainant taking his wife, neighbours Vijay, Dinesh, Pradeep, with Bablu reached at Ramleela 3 of 81 4 FIR No. 118/09 PS - S. P.Badli Maidan, Village Badli and where he (complainant) saw that his daughter/prosecutrix was lying inside dry grass (ghaas phoos) and he (complainant) recovered her and she was in naked condition and was in semiconsciousness (nagna avastha mei thi va ardh chetna mei thi) and the blood was present all over her body and also on her vagina and had dried. Her Tshirt of red color and underwear (kachhi) of kathai color which she was wearing were also not found present. Thereafter, the complainant gave the information on no. 100 and the police came there and took the prosecutrix in possession. Bablu was kept under the supervision of a Constable. One Constable and L/Constable were also called at the spot. Bablu by taking her daughter/prosecutrix at an isolated place (sunsaan jagah par) has committed rape upon her in the night, legal action be taken against him. Statement has been heard and is correct. From the statement, and on inspection of the body of the recovered girl/prosecutrix on finding that the offences u/s 363/376 IPC appeared to have been committed, the case was got registered by SI Varun Dalal. Accused and the prosecutrix were got medically examined and the sealed exhibits handed over by the concerned doctor after their medical examinations were taken into police possession. The spot was 4 of 81 5 FIR No. 118/09 PS - S. P.Badli inspected, the site plan was prepared, the statements of the witnesses were recorded. After finding sufficient evidence, accused Bablu was arrested. Statement of the prosecutrix was got recorded u/s 164 Cr.P.C.
Upon completion of the necessary further investigation, challan for the offences u/s 363/376 IPC was prepared against accused Bablu and was sent to the Court for trial.
2. Since the offence under section 376 IPC is 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 Session under section 209 Cr.P.C.
3. Upon committal of the case to the Court of session and after hearing on charge, prima facie a case under section 363/366/376 IPC was made out against the accused. The charge was framed accordingly, which was read over and explained to the accused to which he pleaded not guilty and claimed trial.
5 of 81 6 FIR No. 118/09 PS - S. P.Badli
4. In support of its case prosecution has produced and examined 17 witnesses. PW1 - Sh. Krishna, father of the prosecutrix, PW2 - Pushpa, mother of the prosecutrix, PW3 - Dinesh, PW4 - Constable Rajesh Kumar, PW5 - Pradeep Kumar, PW6 - ASI Farman Singh, PW7 - HC Pramod Kumar, PW8 - Dr. Gopal Krishan, PW9 - HC Rohtash, PW10 - Constable Bhisam, PW11 - Dr. Seema, Medical Officer, BJRM Hospital, PW12 - Constable Jitender, PW13 - SI Varun Dalal, PW14 - Sh. Vishal Singh, Learned MM, Rohini Court, Delhi, PW15 - Constable Maya, PW16 - ASI Raj Bala and PW17 - Ms. Shashi Bala, Senior Scientific Officer, Biology, FSL, Rohini, Delhi.
5. In brief the witnessography of the prosecution witnesses is as under : PW1 - Sh. Krishna is the father of the prosecutrix who proved his statement made to the Police Ex. PW1/A signed by him at point 'A', arrest memo of accused Bablu Ex. PW1/B, his personal search memo Ex. PW1/C, his disclosure statement Ex. PW1/D, pointing out memo the place of incident by accused Ex. PW1/E, the seizure memo of the clothes of the prosecutrix Ex. PW1/F. He identified the clothes of 6 of 81 7 FIR No. 118/09 PS - S. P.Badli the prosecutrix Ex. P1 and P2.
PW2 - Pushpa who is the mother of the prosecutrix who deposed regarding the investigation conducted by the Police and marked the photocopy of the discharge slip and OPD Card of the prosecutrix of her medical treatment which she was undergoing marks 'X' and 'X1' respectively and also identified the clothes of the prosecutrix Ex. P1 and P2.
PW3 - Dinesh is the neighbour of the prosecutrix and resident of village Badli, Delhi who deposed regarding the investigation conducted by the Police and also deposed that accused Bablu was residing near the house of Krishna (PW1).
PW4 - Constable Rajesh Kumar who joined investigation with IO SI Varun Dalal (PW13) and deposed on invstigational aspects and besides proving the other memos also proved the seizure memo of the sealed exhibits given by the Doctor after the medical examination of accused Bablu Ex. PW4/A signed by him at point 'A'. He also identified 7 of 81 8 FIR No. 118/09 PS - S. P.Badli the clothes of the prosecutrix Ex. P1 and P2.
PW5 - Pradeep Kumar is the neighbour of the prosecutrix and resident of village Badli, Delhi who deposed regarding the investigation conducted by the Police and also deposed that accused Bablu was residing in their neighbourhood and identified accused Bablu present in the Court.
PW6 - ASI Farman Singh is the Duty Officer who proved the computerised copy of FIR Ex. PW6/A signed by him at point 'A' and also proved his endorsement at point 'A' on the tehrir regarding registration of the FIR vide DD No. 14A.
PW7 - HC Pramod Kumar is the MHC(M) who proved the relevant entry of the register no. 19 Ex. PW7/A and also proved the copy of the RC No. 228/21/09 Ex. PW7/B and the copy of the acknowledgment of the sample by FSL Ex. PW7/C. PW8 - Dr. Gopal Krishan who proved the medical 8 of 81 9 FIR No. 118/09 PS - S. P.Badli examination of accused Bablu as was conducted by Dr. Kumbher vide MLC Ex. PW8/A signed by Dr. Kumbher at point 'A'. He also proved the opinion of Dr. Anil SR, Surgery from point 'B' to 'B' on MLC Ex. PW8/A signed by Dr. Anil at point 'C' who examined the patient accused Bablu and opined that there is nothing found on clinical examination which suggests that the patient is not capable for sexual act.
PW9 - HC Rohtash is the Duty Officer who deposed that on 25/05/2009 at about 7:45 a.m. He received the information from Wireless Operator of the Police Station and on recorded the DD No. 7A and proved the copy of DD No. 7A dated 25/05/2009 Ex PW9/A. PW10 - Constable Bhisam who joined investigation with IO SI Varun Dalal (PW13) and deposed on investigational aspects.
PW11 - Dr. Seema, Medical Officer, BJRM Hospital who proved MLC of the prosecutrix Ex. PW8/B and also proved the gynaecological examination as was conducted by Dr. Sadhna from portion 'X' to 'X1' on MLC Ex. PW8/B signed by Dr. Sadhna at point 'A'.
9 of 81 10 FIR No. 118/09 PS - S. P.Badli PW12 - Constable Jitender who deposited the sealed pullindas on 02/07/2009 in the FSL, Rohini after obtaining the same from the MHC(M) vide RC No. 228/21/09.
PW13 - SI Varun Dalal is the IO of the case deposed on investigational aspects and proved his endorsement Ex. PW13/A signed by him at point 'C' on the statement of PW1 - Krishna Ex. PW1/A which is also attested by him at point 'B'.
PW14 - Sh. Vishal Singh, Learned MM, Rohini Court, Delhi who dealt with the proceedings for the recording of the statement of the prosecutrix and proved the application Ex. PW14/A placed before him for recording the statement of the prosecutrix u/s 164 Cr.P.C. Identification of the prosecutrix by IO vide Ex. PW14/B. He deposed that he asked some preliminary questions from the prosecutrix and was of the opinion that the child is too tender in age to give her statement u/s 164 Cr.P.C. hence her statement u/s 164 Cr.P.C. was not recorded and proved the proceedings in this regard Ex. PW14/C signed by him at 10 of 81 11 FIR No. 118/09 PS - S. P.Badli points 'A' and 'B'. He also proved the application Ex. PW14/D of the IO on which the copy of the proceedings was given to the IO.
PW15 - Constable Maya who joined the investigation on 25/05/2009 and deposed on the investigational aspects and also proved the seizure memo of the sealed pullindas handed over by the Doctor after the medical examination of the prosecutrix Ex. PW15/A signed by her at point 'A'.
PW16 - ASI Raj Bala is the (IO) of the case who deposed on investigational aspects and besides proving the other memos also proved as have been deposed by other witnesses she also proved the site plan Ex. PW16/A prepared at the instance of PW1 Krishna bearing his signatures at point 'A'. She deposed that on 06/07/2009 she moved an application for recording the statement of the prosecutrix u/s 164Cr.P.C. Ex. PW16/B (also Ex. PW14/A). She deposed that she collected the copy of the proceedings of the statement u/s 164 Cr.P.C. on the application Ex. PW16/C (also Ex. PW14/D). She deposed that she collected the FSL Result and also identified the cloth of the prosecutrix 11 of 81 12 FIR No. 118/09 PS - S. P.Badli Ex. P1.
PW17 - Ms. Shashi Bala, Senior Scientific Officer, Biology, FSL, Rohini, Delhi has proved the biological and serological reports Ex. PW17/A and Ex. PW17/B respectively signed by him at points 'A'.
The testimonies of the prosecution witnesses shall be dealt with in detail during the course of appreciation of evidence.
6. Statement of accused Bablu was recorded u/s 313 Cr.P.C wherein he pleaded innocence and false implication and opted not to lead any defence evidence.
7. Learned Counsel for the accused submitted that accused Bablu has no role to play in the alleged incident in any manner.
Learned Counsel for accused further submitted that PW1 - Krishna is complainant in the present case and has deposed that his daughter/prosecutrix (name withheld) was playing with accused Bablu 12 of 81 13 FIR No. 118/09 PS - S. P.Badli and that he had taken his daughter and on the next day victim/prosecutrix (name withheld) was recovered from Ramleela Ground, Badli.
In his crossexamination, PW1 has stated that, "It is correct that accused Bablu used to work with Tent House as Helper. It is correct that accused generally used to leave for his work at about 6:307:00 p.m. in the evening and return back from his work at about 7:00 - 7:30 a.m. on the next date. I had stated to the Police officials in my statement that the name of the landlord of Bablu is Sher Singh. It is correct that two more boys were also residing with accused Bablu in his room. I had called 100 No. from my mobile phone. PCR Officials had recorded my statement and obtained my signatures on the same. I had not visited the PS on the night of incident. PCR Officials remained at out place for about one hour. I had told to the PCR Officials about the description of clothes worn by my daughter. I had also stated in my statement Ex. PW1/E about the description of clothes worn by my daughter on the said date. Confronted with statement Ex. PW1/E where it is not so recorded. I had not stated to the Police officials the name of other two persons who were residing with accused Bablu. It is correct that PCR Officials had made enquiries from those two persons who were residing with accused. It is 13 of 81 14 FIR No. 118/09 PS - S. P.Badli wrong to suggest that the said two persons had told the PCR officials that Police Official from PS - S. P. Badli had visited my place............. I had stated to the Police in my statement Ex. PW1/E, "I went inside my house. The accused Bablu took my daughter to Ram Leela Ground at Badli Village. The accused did not bring my daughter back." Confronted with Ex. PW1/E where it is not recorded specifically. It is correct that I had signed all the documents at PS S. P. Badli.
From the above discussion, the main point that comes up is that the girl child (victim) was allegedly recovered from Ram Leela Maidan, Badli that is easily accessible to all being a public place and is frequented by many public persons. Thus making the story/deposition of PW1 and prosecution highly unbelievable and further PW1 was specifically confronted with his previous statement regarding the aspect that accused Bablu had taken his daughter to Ram Leela Maidan and accused did not bring his daughter back.
Learned Counsel for accused further submitted that PW2 - Smt. Pushpa is the wife of PW1 - Krishna and mother of victim/girl child and in her examinationinchief has deposed that accused had taken 14 of 81 15 FIR No. 118/09 PS - S. P.Badli away her daughter on 24/05/2009 and that her daughter was recovered from Ram Leela Maidan on the next day.
In her crossexamination she has stated that, "we do not know accused Bablu prior to the incident. It is correct that prior to the incident,there was no talking terms or visiting terms with the accused. It is correct that the persons who were not acquainted with us, we do not send out children with them and to their houses. It is correct that I am aware about the residential address of the accused. It is correct that I had gone to the house of the accused in his search which factum I told to the Police officials. The others who were residing alongwith the accused had told me that accused Bablu had taken my daughter (Confronted with statement Ex. PW2/DA where it is not so recorded). It is correct that I came to know that Bablu had taken my daughter only after the other boys told me so. I do not remember if the Police officials recorded the statements of boys or not but they had recorded the names of the boys who had told that Bablu had taken my daughter. Ram Leela Ground is easily accessible to public persons. It is also correct that Ram Leela Ground is used by milk vendors who used to graze their cattle in the ground. I do not know whether the clothes worn by accused were seized 15 of 81 16 FIR No. 118/09 PS - S. P.Badli or not. It is correct that PCR Officials had also recorded out statement in night time when they arrived on 24/05/2009."
Important point that come to the fore from the cross examination of PW2 that she had admitted that they were told about the fact that their daughter (girl/child) was taken by accused Bablu by the two other boys who were residing with the accused. (Meaning thereby that their PW1 & PW2's version is based on hearsay information received. But the said two boys who were important source of information and who were enquired by the Police officials from PCR are not produced in the witness box and neither PCR Officials are produced in the witness box, who fist went to the spot, collected photograph of child and made preliminary enquiries about the incident.
Learned Counsel for accused further submitted that PW3 Dinesh is neighbour of PW1 as claimed by the prosecution and has deposed about the recovery of girl child from Ram Leela Ground in his examinationinchief.
In his crossexamination he has stated that "Krishna had telephone to the Police on 100 No. on 24/05/2009 but I cannot tell the 16 of 81 17 FIR No. 118/09 PS - S. P.Badli exact time. PCR Official had not visited the house of Krishna after the call. PCR call was not made in my presence.... It is correct that prior to this incident Bablu was not having visiting and talking term with family of Krishna....... It is correct that Ram Leela Ground is easily accessible to public persons. It is correct that Krishna had not given the photographs of girl child to the Police officials who visited the house on night of 24/05/2009 in my presence.......... It is correct that 3/4 other boys were also residing with accused Bablu. Police officials had made enquiry on 24/05/2009 in the night from two boys who were residing in the room of Bablu but I cannot tell their names. It is correct that I had seen prosecutrix/victim at the PS and not at Ram Leela Ground. It is correct that I came to know in the PS that it was accused Bablu who had taken the girl of Krishna."
From the above discussion and specially the last 3/4 lines as mentioned herein above it becomes clear that PW3 is a planted witness and he is not aware about the incident as played out by the investigating agency. Further he has contradicted the version of PW1 and PW2 as regards the visit and enquiry and investigation done by PCR Officials after the call at 100 No. was made.
17 of 81 18 FIR No. 118/09 PS - S. P.Badli Learned Counsel for accused further submitted that PW4 - Constable Rajesh Kumar has deposed that he had joined the investigation on 25/05/2009 with SI Varun Dalal and went to Ram Leela Ground and then joined investigation with W/ASI Raj Bala in the Hospital.
In his crossexamination he has denied that Ram Leela Maidan is a public place and is easily accessible to public persons or that many public persons were present much before he went there with SI Varun Dalal. He had stated in crossexamination that, "Accused Bablu had also signed the site plan as attesting witness. It is correct that none of the memos prepared pertaining to accused Bablu were not signed by any public witness".
Learned Counsel for accused further submitted that PW5 Pardeep Kumar has deposed that he has been informed by PW1 & 2 about missing of their daughter in the night of 24/05/2009 and that their daughter was found on the next day at Ram Leela Ground, Badli in unconscious condition.
In his crossexamination he has stated that, "Police had 18 of 81 19 FIR No. 118/09 PS - S. P.Badli come to our house after 9:00 p.m. after we had reached at our house searching prosecutrix (name withheld). I am not sure whether the statement of Krishna was recorded by the Police or not at that time as we were indulge in searching the prosecutrix (name withheld). No photograph of prosecutrix (name withheld) was given by Krishna to the Police at that time as I recollect..... Police had made inquiries in the neighbourhood from the neighbours regarding accused Bablu. The room of Bablu was opened and a boy who used to live with Bablu at that time when the room was shown to the Police, who had arrived at that time. Police had made inquiries from the boy who was found in the room of Bablu. No statement of that boy was reduced into writing by Police in my presence. One or two Constables of Police remained with us for tracing out prosecutrix (name withheld). Myself and Krishna had not gone to the Police Station to meet the SHO in the night time. The boy who was found in the room of Bablu after inquiries by the Police was left there only..... It is correct that there is a Police assistance booth near the red light signal of Badli adjoining to the wall of Ram Leela Maidan. I have never noticed any date of the Ram Leela Maidan however there are two ingress leading to Ram Leela Maidan." He has admitted that Ram 19 of 81 20 FIR No. 118/09 PS - S. P.Badli Leela Ground is easily accessible to all and that he never seen accused Bablu with girl child.
Learned Counsel for accused further submitted that PW13 SI Varun Dalal has deposed that on receipt of DD No. 7A on 25/05/2009 regarding apprehension of a boy he went to attend the call and after becoming aware that the case pertains to sexual assault the further investigation was handed over to lady Police officer. He had prepared the Rukka and sent the same for registration of FIR. He is first IO in the present case.
In his crossexamination, he was confronted with his previous statement on various aspects. He had deposed that, "I had not prepared the site plan of the spot/place of Ram Leela Ground from where recovery of prosecution was made. He had also admitted that Ram Leela Ground is easily accessible to public persons.
Learned Counsel for accused further submitted that W/ASI Raj Bala is second IO in the present case and has filed the challan after completion of investigation.
20 of 81 21 FIR No. 118/09 PS - S. P.Badli In her crossexamination she had admitted that no clothes of accused were seized by her and also that she had not shown the spot in the site plan of the recovery of clothes (TShirt and undergarments) at the instance of accused. She had further admitted to various lapses made by her during the course of investigation.
Learned Counsel for accused further submitted that the case is based on hearsay piece of evidence, admittedly both PW2 (mother of the girl child) and PW1 (father) have told that they were told by two room mates of accused that he had taken their daughter. Those two room mates of accused though admittedly were enquired, interrogated but neither their statements were recorded and now were that cited as witnesses by the Investigating Agency. That the place of recovery of girl child is admittedly accessible to public at large. That no recovery was effected pursuant to alleged disclosure statement of accused. The spot from where allegedly clothes of child were recovered is not shown in the site plan by the UO. Further witnesses including PW5 had stated that Police had thoroughly checked and searched Ram Leela Ground and the alleged recovery was effected subsequently and as such it is apparent that 21 of 81 22 FIR No. 118/09 PS - S. P.Badli it is planted recovery. That the clothes worn by accused Bablu were not seized. That the PCR Officials have not been cited and examined as witnesses have stated that initially PCR Officials visited and conducted investigation.
Learned Counsel for accused prayed that in light of above mentioned facts and circumstances, the accused may kindly be acquitted of the charges (bases on hearsay piece of evidence and conjectures and surmises) in the interest of justice.
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 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. S. C. Sroai, Learned Addl. PP for the State and Sh. Ashish Bhardwaj, Learned Counsel for the accused and have also 22 of 81 23 FIR No. 118/09 PS - S. P.Badli carefully perused the entire record.
10. The charge for the offences punishable u/s 363/366/376 IPC against accused Bablu is that on the intervening night of 2425/05/2009 between 8:30 p.m. and 7:45 a.m., at Badli Village within the jurisdiction of PS - Badli he kidnapped the prosecutrix (name withheld being case u/s 376 IPC) D/o Krishan (a minor girl aged about 03 years) while she was playing in front of her house, H. No. 16, Shiv Mandir Mohalla, Badli Village, Delhi out of the lawful guardianship of her father Sh. Krishan without his consent and he kidnapped prosecutrix (name withheld) with intention that the prosecutrix (name withheld) be forced or seduced to illicit intercourse or knowledge that she may be raped and further that on abovesaid date, time and place he committed rape on the minor girl (aged about 03 years) (name withheld).
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 evidence at some places their part of depositions have been reproduced, in the 23 of 81 24 FIR No. 118/09 PS - S. P.Badli interest of justice.
AGE OF THE PROSECUTRIX/VICTIM
12. PW1 - Krishna, father of the prosecutrix/victim in his examinationinchief has deposed that her daughter (name withheld) was aged about 1½ years on 24/05/2009.
PW2 - Smt. Pushpa, mother of the prosecutrix/victim in her examinationinchief has deposed that her daughter (name withheld) was aged around two years on 24/05/2009.
There is nothing in the crossexamination of PW1 - Krishna and PW2 - Pushpa so as to impeach their creditworthiness on the aspect of their daughter prosecutrix/victim. Nor any evidence on the contrary has been produced or led on the record by the accused.
In view of above and in the circumstances, it stands established on record that prosecutrix/victim was aged two years on the date of alleged incident on the intervening night of 2425/05/2009. MEDICAL EVIDENCE OF THE PROSECUTRIX/VICTIM
13. PW11 - Dr. Seema, Medical Officer, BJRM Hospital has 24 of 81 25 FIR No. 118/09 PS - S. P.Badli proved the MLC of the prosecutrix/victim Ex. PW8/B and also proved the gynaecological examination as was conducted by Dr. Sadhna from portion 'X' to 'X1' on MLC Ex. PW8/B signed by Dr. Sadhna at point 'A'.
It is pertinent to reproduce the examinationinchief of PW11 - Dr. Seema which reads as under : "I have been deputed by the Medical Superintendent to depose on behalf of Doctor Sadhna who has since left the Hospital and her whereabouts are not available. I am acquainted with the handwriting and signature of Dr. Sadhana as I have worked with her in the Hospital and had seen her signing and writing in the course of the duties. I have seen the MLC No. 2903/09 E. N. No. 36703 dated 25/05/2009 of patient/prosecutrix D/o Sh. Krishna who was brought in the Hospital at about 10:30 a.m. And was medically examined vide MLC Ex. PW8/B and was referred to SR Gynae. The said patient was gynaecologically examined by Dr. Sadhana and as per the gynaecological examination multiple abrasions were present all over the body. On local examination (L/E) bleeding positive from the perineum, deep tear positive in perineum, hymen torn, rectal mucosa and anal sphincter torn. Fresh injuries present. Undergarments, packed and sealed, vaginal wall smear slides made from area around rectal mucosa anal sphincter and perineum packed and sealed and handed over to Constable Maya 1855/Outer District. The gynaecological examination conducted by Dr. Sadhana, SR, Gynae is from portion 'X' to 'X1' on the MLC Ex. PW8/B and signed by Dr. Sadhana at point 'A'."
Despite grant of opportunity, PW11 - Dr. Seema was not 25 of 81 26 FIR No. 118/09 PS - S. P.Badli crossexamined on behalf of accused.
In view of above and in the circumstances, the medical and the gynaecological examination of prosecutrix stands proved on the record.
VIRILITY OF THE ACCUSED
14. PW8 - Dr. Gopal Krishan has proved the medical examination of accused Bablu as was conducted by Dr. Kumbher vide MLC Ex. PW8/A signed by Dr. Kumbher at point 'A'. He also proved the opinion of Dr. Anil SR, Surgery from point 'B' to 'B' on MLC Ex. PW8/A signed by Dr. Anil at point 'C' who examined the patient/accused Bablu and opined that there is nothing found on clinical examination which suggests that the patient is not capable for sexual act.
Despite grant of opportunity PW8 - Dr. Gopal Krishan was not crossexamined on behalf of the accused.
In view of above and in the circumstances, it stands proved on the record that accused Bablu was capable of performing sexual act. BIOLOGICAL AND SEROLOGICAL EVIDENCE 26 of 81 27 FIR No. 118/09 PS - S. P.Badli
15. PW17 - Ms. Shashi Bala, Senior Scientific Officer, Biology, FSL, Rohini, Delhi has proved the biological and serological reports Ex. PW17/A and Ex. PW17/B respectively signed by him at points 'A'.
As per biological report Ex. 17/A the description of articles contained in parcel and result of analyses reads as under : DESCRIPTION OF ARTICLES CONTAINED IN PARCEL Parcel '1' : One sealed cloth parcel sealed with the seal of "MS BJRMH J. PURI DELHI" containing exhibit '1'. Exhibit '1' : One baby's underwear having stiffy stains described as undergarments prosecutrix (name withheld). Parcel '2' : One sealed cloth parcel sealed with the seal of "MS BJRMH J. PURI DELHI" containing exhibits '2a' & '2b'. Exhibits '2a' : Two microslides having whitish smear described as & '2b' vaginal wall semen slide of prosecutrix. Parcel '3' : One sealed cloth parcel sealed with the seal of "MS BJRMH J. PURI DELHI" containing exhibit '3'. Exhibit '3' : Dark brown liquid described as blood sample of accused Bablu.
27 of 81 28 FIR No. 118/09 PS - S. P.Badli Parcel '4' : One sealed cloth parcel sealed with the seal of "MS BJRMH J. PURI DELHI" containing exhibit '4'. Exhibit '4' : Yellowish putrefied liquid described as semen sample of accused 'Bablu'.
Parcel '5' : One sealed cloth parcel sealed with the seal of "MS BJRMH J. PURI DELHI" containing exhibits '5a' & '5b' described as undergarments of accused 'Bablu'.
Exhibit '5a' : One underwear. Exhibit '5b' : One banian having brown stains. Parcel '6' : One sealed cloth parcel sealed with the seal
of "V.D" containing exhibits '6a' & '6b' described as clothes of prosecutrix.
Exhibit '6a' : One baby's shirt.
Exhibit '6b' : One baby's underwear.
RESULT OF ANALYSIS
1. Human semen was detected on exhibits '1', '2a', '2b' & '5a'.
2. Blood was detected on exhibits '1', '3' & '5b'.
3. Semen could not be detected on exhibits '5b', '6a' & '6b'.
4. Report of serological analysis in original is attached herewith. NOTE : Remnants of the exhibits have been sealed with the seal of 'SB FSL DELHI'.
28 of 81 29 FIR No. 118/09 PS - S. P.Badli The serological report Ex. 17/B reads as under : Exhibits Species of origin ABO Grouping/Remarks Blood stains: Human 'B' group '1' Baby's underwear [Reaction observed with both antiB & anti - H sera] '3' Blood sample Sample was putrefied hence no opinion '5b' Banian Human 'B' group [Reaction observed with both antiB & anti - H sera] Semen stains: 'B' group '1' Baby's underwear [Reaction observed with both antiB & anti - H sera] '4' Semen sample Sample was putrefied hence no opinion '5a' Underwear Inconclusive result On careful perusal and analysis of the biological evidence on record, it clearly shows that blood was detected on exhibits '1' (underwear of the prosecutrix/victim), '3' (Blood sample of accused Bablu) and '5b' (One banian of accused Bablu having brown stains); Human semen was detected on exhibits '1' (underwear of the 29 of 81 30 FIR No. 118/09 PS - S. P.Badli prosecutrix/victim), '2a' and '2b (vaginal wall semen slide of prosecutrix) and '5a' (One underwear of accused Bablu).
On a conjoint reading of the medical evidence, the gynaecological examination on MLC Ex. PW8/B of the prosecutrix as was conducted by PW1 - Dr. Sadhana from portion 'X' to 'X1' on MLC Ex. PW8/B signed by Dr. Sadhna at point 'A' together with the MLC of accused Bablu Ex. PW8/A as conducted by Dr. Kumbher vide signed by Dr. Kumbher at point 'A' 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. PW17/A with regard to the description of the articles contained in the parcels, it is noticed that, parcel nos. 1, 2 and 6 belong to prosecutrix/victim out of which parcel nos. 1 & 2 were seized vide seizure memo Ex. 15/A and parcel no. 6 was 30 of 81 31 FIR No. 118/09 PS - S. P.Badli seized vide seizure memo Ex. PW1/F, parcel nos. 3 to 5 belong to accused Bablu which were seized vide seizure memo Ex. PW4/A. As per the biological report Ex. PW17/A, prosecution has discharged its initial burden of proving the presence of Human semen on exhibits '1' underwear (of the prosecutrix/victim seized vide memo Ex. PW15/A), '2a' and '2b vaginal wall semen slide (of the prosecutrix/victim seized vide memo Ex. PW15/A) and '5a' One underwear (of accused Bablu seized vide memo Ex. PW4/A). Accused was under an obligation to explain how and under what circumstances, the Human semen came to be present on the said exhibits '1', '2a', '2b' and '5a' as detailed hereinabove. The absence of such an explanation both in the section 313 Cr.P.C. statement of the accused and his omission to lead any evidence in this regard and his complete denial becomes an additional link in the prosecution case.
16. Now let the testimonies of PW1 - Sh. Krishna, PW2 - Smt. 31 of 81 32 FIR No. 118/09 PS - S. P.Badli Pushpa, PW3 Dinesh and PW5 - Sh. Pradeep Kumar, neighbour of the prosecutrix be perused and analyzed.
PW1 - Sh. Krishna, is the father of the prosecutrix/victim, who in his examinationinchief has deposed which is reproduced and reads as under : "On 24/05/2009 at about 8:30 p.m., I was standing outside my house. My daughter/prosecutrix (name withheld) , aged about 2½ years was also standing outside my house. The accused Bablu present in the Court picked up my daughter in his Godi and started playing with her. After some time I asked him to hand over my daughter back to me on which he stated that he wanted to play with her for some more time and he would bring himself my daughter back to my house. I went inside my house. The accused Bablu took my daughter to Ramlila Ground at Badli Village. The accused did not bring my daughter back. I searched for my daughter for the whole night but could not find her. Thereafter, I informed the Police at 100 No. in the night. Police officials reached at my house at about 10:00 p.m. and SI Varun Dalal had also come. The police officials searched for my daughter but did not succeed. On the next day at about 7:00 a.m. accused Bablu came to his house. He had not brought my daughter back and when I made inquiries from him, he did not give any satisfactory reply. I called the neighbourers at the spot, then on the pressure of the neighbours, he told that he had hide my daughter at Ram Lila ground, at Badli Village. Then we all went to the Ram Lila ground and saw that my daughter was lying there in naked condition and she was in unconscious condition. Blood was also found in dry 32 of 81 33 FIR No. 118/09 PS - S. P.Badli condition on her private parts and on other body parts. Then we rang to the police at 100 No. and the police arrived at the spot immediately and my statement was recorded, same is Ex. PW1/A bearing my signature at point 'A'. Accused Bablu was handed over to the police. Accused Bablu was arrested vide arrest memo Ex. PW1/B bearing my signature at point 'A'. His personal search was also conducted vide memo Ex. PW1/C bearing my signature at point 'A'. Police also prepared other papers. I have signed the disclosure statement of the accused which is Ex. PW1/D bearing my signature at point 'A'. I also signed the pointing out memo of the Ram Lila ground where accused had committed the crime, same is Ex. PW1/E bearing my signature at point 'A'. Police took my daughter to the BJRM hospital and admitted her there. The cloths of my daughter i.e. Red colour Tshirt and light brown colour (Katthai) underwear, were taken into possession by the police. I have signed the recovery memo Ex. PW1/F at point 'A'. Accused is present in the Court today, (correctly identified by the witness) I can identify the cloths of my daughter, if shown to me.
At this stage, MHC(M) PS - S. P. Badli has produced one sealed parcel no. 6 sealed with the seal of FSL. Same is opened and found containing one baby pink colour Tshirt and one baby underwear of dark brown colour. Same are shown to the witness and he correctly identified the same belonging to her daughter. Same are Ex. P1 and P2."
From the aforesaid narration of PW1 - Krishna, it is clear that on 24/05/2009 at about 8:30 p.m., he was standing outside his house. His daughter/prosecutrix (name withheld), aged about 2½ years was also 33 of 81 34 FIR No. 118/09 PS - S. P.Badli standing outside his house. The accused Bablu present in the Court picked up his daughter in his Godi and started playing with her. After some time he (PW1 - Krishna) asked him (accused) to hand over his daughter back to him on which he (accused) stated that he wanted to play with her for some more time and he would bring himself his daughter back to his house. He went inside his house. The accused Bablu took his daughter to Ramlila Ground at Badli Village. The accused did not bring his daughter back. He searched for his daughter for the whole night but could not find her. Thereafter, he informed the police at 100 number in the night. Police officials reached at his house at about 10:00 p.m. and SI Varun Dalal had also come. The police officials searched for his daughter but did not succeed. On the next day at about 7:00 a.m. accused Bablu came to his house. He had not brought his daughter back and when he (PW1 - Krishna) made inquiries from him, he (accused) did not give any satisfactory reply. He called the neighbourers at the spot, then on the pressure of the neighbours, he (accused) told that he had hide his daughter at Ram Lila ground, at Badli Village. Then they all went to the Ram Lila ground and saw that his daughter was lying there in naked condition and she was in unconscious condition. Blood was also 34 of 81 35 FIR No. 118/09 PS - S. P.Badli found in dry condition on her private parts and on other body parts. Then they rang to the police at 100 number and the police arrived at the spot immediately and his statement was recorded, same is Ex. PW1/A bearing his signature at point 'A'. Accused Bablu was handed over to the police. Accused Bablu was arrested vide arrest memo Ex. PW1/B bearing his signature at point 'A', his personal search was also conducted vide memo Ex. PW1/C bearing his signature at point 'A'. Police also prepared other papers. He had have signed the disclosure statement of the accused which is Ex. PW1/D bearing his signature at point 'A'. He also signed the pointing out memo of the Ram Lila ground where accused had committed the crime, same is Ex. PW1/E bearing his signature at point 'A'. Police took his daughter to the BJRM hospital and admitted her there. The cloths of his daughter i.e. Red colour Tshirt and light brown colour (Katthai) underwear, were taken into possession by the Police. He had signed the recovery memo Ex. PW1/F at point 'A'. PW1 - Krishna correctly identified the accused in the Court. He also identified the baby pink colour Tshirt and baby underwear of his daughter/victim Ex. P1 and P2 respectively.
35 of 81 36 FIR No. 118/09 PS - S. P.Badli PW1 - Krishna, father of the prosecutrix during his cross examination has negated the suggestions that the accused never quarrel with anybody prior to this incident or that the two persons (residing with accused Bablu) had told the PCR Officials that Bablu had gone to his work or that the said two persons were called to the Police Station on the next day or that the said two persons had told SI Varun Dalal also that Bablu had gone for his work on 24/05/2009 or that there was no gate on the Ram Leela Ground of Badli or that the wall of the Ram Leela Ground from the back side of Kanal was broken at that time or that there is a Police Assistance Booth just adjoining the wall of Ram Leela Maidan towards the red light or that the clothes of her daughter were seized later on when she handed them over to the Police in the evening or that accused has been falsely implicated in the present case or that he is deposing falsely or that nothing has happened in his presence as deposed or that he had manipulated the story in connivance or at the instructions of the Police officials or that his daughter was not playing with accused on the said date as deposed by him in his examinationinchief or that he has deposed falsely.
36 of 81 37 FIR No. 118/09 PS - S. P.Badli Inspite of incisive crossexamination of PW1 - Krishna, nothing material has been brought out so as to impeach his creditworthiness. In the witness box he has withstood the test of cross examination and his testimony is consistent throughout. The version of this witness on the core spectrum of crime has remained intact. The testimony of PW1 - Krishna on careful perusal and analysis is found to be natural, clear, cogent, convincing, trustworthy and inspiring confidence. There is nothing in his statement to suggest that he had an animus against the accused Bablu to falsely implicate him in the case.
The testimony of PW1 - Krishna is also found to be corroborated by the medical evidence and the biological and serological evidence as discussed hereinbefore. The testimony of PW1 - Krishna is also found to be in consonance with his statement Ex. PW1/A made to the Police.
The testimony of PW1 - Krishna is also found to be corroborated by PW2 - Pushpa, PW3 - Dinesh and PW5 - Pradeep Kumar, to whom PW1 Krishna had disclosed the facts relating to the crime shortly after the incident being relevant u/s 6 & 8 of the 37 of 81 38 FIR No. 118/09 PS - S. P.Badli Indian Evidence Act, 1872.
PW2 - Pushpa, mother of the prosecutrix, in her examinationinchief has deposed that : "On 24/05/2009, my daughter/prosecutrix (name withheld) aged around 2 years was playing outside our house. At about 8:30 p.m., accused Babloo present in the Court today took my daughter into his lap for the purpose of playing with her. He also stated that after some time he left her to our house as (at) his own. But the accused did not left my daughter on that day. We searched our daughter in the night but all our efforts were in vain. We also informed Police at number 100 at about 11:00 p.m. Police arrived at our house and remained there upto 3:00 p.m. and also searched my daughter but all their efforts were also not succeeded.
In the morning at about 7:00 a.m accused Babloo came to his house. We and public persons gathered in front of his house and pressurized him to brought our daughter back. After continues (continuous) persuation (persuasion) by us and public persons he himself disclosed that he had hide my daughter at Ramlila Ground then we all went alongwith accused Babloo went to Ramlila Ground then in search of my daughter and found my daughter lying there in the naked and unconscious condition. Blood was also found on her private parts. Police also arrived at the spot alongwith one lady Police. Accused was apprehended by them. My daughter was got medically examined from BJRM Hospital Jahangir Puri where she was undergoing treatment for 6 days, thereafter she was discharged. I have given the discharged slip and OPD Card photocopies to the IO. Photocopies of the same are marked 38 of 81 39 FIR No. 118/09 PS - S. P.Badli 'X' and 'X1' respectively. I have not brought today the original copy of the discharged and OPD slips. Police have seized the cloth of my daughter which was lying near the spot where my daughter was recovered. My daughter was also taken to the Court for recording her statement u/s 164 Cr.P.C. but her statement was not recorded because she was of tender age and cannot give the details of the facts of the incident.
I can identify the clothes worn by my daughter at the day of incident if shown to me. At this stage, MHC(M) produced a pullinda sealed with the Court seal containing a baby pink red Tshirt and one baby underwear of dark brown colour and the witness identify that they belongs to her daughter. Same are already Ex. P1 and P2."
From the aforesaid narration of PW2 - Smt. Pushpa it is clear that on 24/05/2009, her daughter/prosecutrix (name withheld) aged around 2 years was playing outside their house. At about 8:30 p.m., accused Babloo present in the Court today took her daughter into his lap for the purpose of playing with her. He also stated that after some time he left her to their house at his own. But the accused did not left her daughter on that day. they searched their daughter in the night but all our efforts were in vain. They also informed Police at number 100 at about 11:00 p.m. Police arrived at their house and remained there upto 3:00 p.m. and also searched her daughter but all their efforts were also not succeeded. In the morning at about 7:00 a.m accused Babloo came to his 39 of 81 40 FIR No. 118/09 PS - S. P.Badli house. They and public persons gathered in front of his house and pressurized him to brought their daughter back. After continuous persuasion by them and public persons he (accused) himself disclosed that he had hide her daughter at Ramlila Ground then they all went alongwith accused Babloo went to Ramlila Ground then in search of her daughter and found her daughter lying there in the naked and unconscious condition. Blood was also found on her private parts. Police also arrived at the spot alongwith one lady Police. Accused was apprehended by them. Her daughter was got medically examined from BJRM Hospital Jahangir Puri where she was undergoing treatment for 6 days, thereafter she was discharged. She have given the discharged slip and OPD Card photocopies to the IO. Photocopies of the same are marked 'X' and 'X1' respectively. However, she had not brought the original copy of the discharged and OPD slips in the Court. Police had seized the cloth of her daughter which was lying near the spot where her daughter was recovered. Her daughter was also taken to the Court for recording her statement u/s 164 Cr.P.C. but her statement was not recorded because she was of tender age and cannot give the details of the facts of the incident. She also identified the clothes worn by her 40 of 81 41 FIR No. 118/09 PS - S. P.Badli daughter at the day of incident.
During her crossexamination PW2 - Pushpa has negated the suggestion that nothing had happened in her presence as deposed or that she had manipulated the story in connivance and at the instructions of Police officials or that she is deposing falsely.
PW3 - Dinesh, neighbour of the prosecutrix/victim in his examinationinchief has deposed that : "On 24/05/2009 in the evening time at about 8:30 p.m., daughter of Krishna was found missing. I alongwith Krishna, his wife Pushpa was searched her daughter/prosecutrix (name withhheld) through the night but could not succeed. In the morning at about 7:00 a.m. accused Babloo present in the Court today came to his house. We all were gathered in front of his house and pressurized him to brought daughter of Krishna back. After continues (continuous) persuation (persuasion) by us and public persons he himself disclosed that he had hide daughter of Krishna at Ramlila Ground then we all went alongwith accused Babloo went to Ramlila Ground in search of daughter of Krishna and found his daughter lying there in the naked and unconscious condition. Blood was also found on her private parts. Clothes were arranged from her house and worn her. Police also arrived at the spot alongwith one Lady Police. Accused was handed over to the Police. We all went to the PS and after registration of the case the statement of Krishna and accused Babloo was arrested after preparing the papers. Daughter of Krishna was got medically examined from BJRM Hospital, 41 of 81 42 FIR No. 118/09 PS - S. P.Badli Jahangir Puri where she was undergoing treatment for 6 days, thereafter she was discharged.
Accused Babloo was residing near the house of Krishna." From the aforesaid narration of PW3 - Sh. Dinesh, it is clear that on 24/05/2009 in the evening time at about 8:30 p.m., daughter of Krishna was found missing. He (PW3) alongwith Krishna, his (PW1
- Krishna) wife Pushpa searched her daughter/prosecutrix (name withhheld) through the night but could not succeed. In the morning at about 7:00 a.m. accused Babloo present in the Court came to his (accused) house. They all were gathered in front of his house and pressurized him to brought daughter of Krishna back. After continues (continuous) persuation (persuasion) by them and public persons he (accused) himself disclosed that he had hide daughter of Krishna at Ramlila Ground then they all went alongwith accused Babloo went to Ramlila Ground in search of daughter of Krishna and found his daughter lying there in the naked and unconscious condition. Blood was also found on her private parts. Clothes were arranged from her house and worn her. Police also arrived at the spot alongwith one Lady Police. Accused was handed over to the Police. They all went to the PS and after 42 of 81 43 FIR No. 118/09 PS - S. P.Badli registration of the case the statement of Krishna and accused Babloo was arrested after preparing the papers. Daughter of Krishna was got medically examined from BJRM Hospital, Jahangir Puri where she was undergoing treatment for 6 days, thereafter she was discharged. Accused Babloo was residing near the house of Krishna.
During his crossexamination PW3 - Dinesh has negated the suggestion that a false and manipulated story in connivance of Police officials had been created to frame the accused in the present case or that he is deposing falsely.
PW5 - Pradeep Kumar, neighbour of the prosecutrix/victim in his examinationinchief has deposed that : "On 24/05/2009 when I returned from my work place at about 7:00 p.m., I found that Krishna alongwith his wife were searching their daughter/prosecutrix (name withheld) in the night time and in the process parents of prosecutrix (name withheld) also visited to our room and asking me that whether I have seek (seen) their daughter anywhere or not and I replied that I have not seen her. On asking by me that what happened to prosecutrix (name withheld), they replied that their daughter/prosecutrix (name withheld) was playing outside their house and Bablu was also with her and both prosecutrix (name withheld) and Bablu were missing. On that day, prosecutrix (name withheld) was not traced. In the morning time, at about 7:00 a.m. father of prosecutrix 43 of 81 44 FIR No. 118/09 PS - S. P.Badli (name withheld) inquiring about his daughter/prosecutrix (name withheld) in presence of other persons. I was also came there. In the beginning Bablu shows (showed) that he was not aware about prosecutrix (name withheld) but after he was pressurized by all the persons present there. Accused Bablu then replied that prosecutrix (name withheld) was available in the Ramlila ground. We all went alongwith accused Bablu to Ramlila ground where prosecutrix (name withheld) was found lying in an unconscious position and she was covered with grass and other material. She was in naked condition and blood was found on her body and on her private parts (Yoni) but was dried. Father of the prosecutrix made a call to the police and police arrived at the spot alongwith a lady police. Police removed the prosecutrix from there to the hospital and prosecutrix was admitted there. Accused Bablu remained with the police and from the hospital we returned to the spot. Police official recorded the statement of Krishna and other papers were prepared. My statement was also recorded. Prosecutrix (name withheld) remained in the hospital for about six days. Police after completing all the proceedings went to the police station. Bablu was residing in our neighbourhood. Accused Bablu is present in the court today. (correctly identified)."
From the aforesaid narration of PW5 - Pradeep Kumar, it is clear that the on 24/05/2009 when he returned from his work place at about 7:00 p.m., he found that Krishna alongwith his wife were searching their daughter/prosecutrix (name withheld) in the night time and in the process parents of prosecutrix (name withheld) also visited to their room 44 of 81 45 FIR No. 118/09 PS - S. P.Badli and asking him that whether he (PW5) had seen their daughter anywhere or not and he replied that he had not seen her. On asking by him (PW5) that what happened to prosecutrix (name withheld), they replied that their daughter/prosecutrix (name withheld) was playing outside their house and Bablu was also with her and both prosecutrix (name withheld) and Bablu were missing. On that day, prosecutrix (name withheld) was not traced. In the morning time, at about 7:00 a.m. father of prosecutrix (name withheld) inquiring about his daughter prosecutrix (name withheld) in presence of other persons. He (PW5) had also come there. In the beginning Bablu showed that he was not aware about prosecutrix (name withheld) but after he was pressurized by all the persons present there, accused Bablu then replied that prosecutrix (name withheld) was available in the Ramlila ground. They all went alongwith accused Bablu to Ramlila ground where prosecutrix (name withheld) was found lying in an unconscious position and she was covered with grass and other material. She was in naked condition and blood was found on her body and on her private parts (Yoni) but was dried. Father of the prosecutrix made a call to the Police and Police arrived at the spot alongwith a Lady Police. Police removed the prosecutrix from there to the hospital and 45 of 81 46 FIR No. 118/09 PS - S. P.Badli prosecutrix was admitted there. Accused Bablu remained with the Police and from the hospital they returned to the spot. Police official recorded the statement of Krishna and other papers were prepared. His (PW5) statement was also recorded. Prosecutrix (name withheld) remained in the hospital for about six days. Police after completing all the proceedings went to the Police Station. Bablu was residing in their neighbourhood and he correctly identified the accused Bablu in the Court during his examination.
During his crossexamination PW5 - Pradeep Kumar has negated the suggestions that the said Police Constables remained through out the night with the family of Krishna in searching their daughter/prosecutrix (name withheld) or that no inquiries were made from Bablu in his presence as deposed or that he (PW5) was told about the presence of prosecutrix (name withheld) by Krishna who was already aware about her presence in Ramlila Maidan or that children stat playing cricket in the Ramlila Maidan early in the morning or that many public persons were present in the Ramlila Maidan when they went there or that he was not knowing Bablu prior to the incident or that he had identified accused Bablu in the Police Station at the instance of Police Officials or 46 of 81 47 FIR No. 118/09 PS - S. P.Badli that he had expressed his ignorance about the aforesaid fact as he was not aware about the missing of prosecutrix (name withheld) on 24/05/2009 as deposed by him or that he was informed later on about the presence of prosecutrix (name withheld) by Krishna at Ramlila Maidan or that he was not aware about the missing of prosecutrix (name withheld) on 24/05/2009 as deposed by him or that he had been planted as a witness in the present case being a neighbour of Krishna or that no inquiries were made from Bablu accused in his presence or that Bablu had not disclosed about the presence of prosecutrix (name withheld) in Ramlila Ground.
Inspite of incisive crossexamination of PW1 - Krishna, PW2 - Pushpa, PW3 - Dinesh and PW5 - Pradeep Kumar, nothing material has been brought out so as to impeach their creditworthiness. They have withstood the rigors of crossexamination without being shaken. Their testimonies on careful perusal and analysis and by applying the discerning scrutiny standard [Ref. Raju @ Balachandran & Ors. Vs. State of Tamil Nadu 2012 XII (S.C.)1] 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 47 of 81 48 FIR No. 118/09 PS - S. P.Badli against the accused Bablu to falsely implicate him in the case.
17. While analysing the testimony of PW1 - Krishna, PW2 - Pushpa, PW3 - Dinesh and PW5 - Pradeep Kumar, as discussed herein above inspite of incisive crossexamination of PW1 - Krishna, PW2 - Pushpa, PW3 - Dinesh and PW5 - Pradeep Kumar, 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 PW1 Krishna that the accused never quarrel with anybody prior to this incident or that the two persons (residing with accused Bablu) had told the PCR Officials that Bablu had gone to his work or that the said two persons were called to the Police Station on the next day or that the said two persons had told SI Varun Dalal also that Bablu had gone for his work on 24/05/2009 or that there was no gate on the Ram Leela Ground of Badli or that the wall of the Ram Leela Ground from the back side of Kanal was broken at that time or that there is a Police Assistance Booth just adjoining the wall of Ram Leela Maidan towards the red light or that the clothes of her daughter were seized later on when she handed them over to the Police in the evening or that accused has 48 of 81 49 FIR No. 118/09 PS - S. P.Badli been falsely implicated in the present case or that he is deposing falsely or that nothing has happened in his presence as deposed or that he had manipulated the story in connivance or at the instructions of the Police officials or that his daughter was not playing with accused on the said date as deposed by him in his examinationinchief or that he has deposed falsely and the suggestions to PW2 - Pushpa that nothing had happened in her presence as deposed or that she had manipulated the story in connivance and at the instructions of Police officials or that she is deposing falsely and the suggestions to PW3 - Dinesh that a false and manipulated story in connivance of Police officials had been created to frame the accused in the present case or that he is deposing falsely and the suggestions to PW5 - Pradeep Kumar that the said Police Constables remained through out the night with the family of Krishna in searching their daughter/prosecutrix (name withheld) or that no inquiries were made from Bablu in his presence as deposed or that he (PW5) was told about the presence of prosecutrix (name withheld) by Krishna who was already aware about her presence in Ramlila Maidan or that children stat playing cricket in the Ramlila Maidan early in the morning or that many public persons were present in the Ramlila Maidan when they went 49 of 81 50 FIR No. 118/09 PS - S. P.Badli there or that he was not knowing Bablu prior to the incident or that he had identified accused Bablu in the Police Station at the instance of Police Officials or that he had expressed his ignorance about the aforesaid fact as he was not aware about the missing of prosecutrix (name withheld) on 24/05/2009 as deposed by him or that he was informed later on about the presence of prosecutrix (name withheld) by Krishna at Ramlila Maidan or that he was not aware about the missing of prosecutrix (name withheld) on 24/05/2009 as deposed by him or that he had been planted as a witness in the present case being a neighbour of Krishna or that no inquiries were made from Bablu accused in his presence or that Bablu had not disclosed about the presence of prosecutrix (name withheld) in Ramlila Ground, 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.
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 50 of 81 51 FIR No. 118/09 PS - S. P.Badli 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 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
51 of 81 52 FIR No. 118/09 PS - S. P.Badli 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 PW1 - Krishna, father of the prosecutrix/victim in the light of medical evidence, biological and serological evidence, the gynaecological examination from portion 'X' to 'X1' on MLC Ex. PW8/B of the prosecutrix/victim and MLC of accused Bablu Ex. PW8/A, 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.
In the circumstances, it stands clearly established on the record, of the performance of the act of sexual intercourse by accused Bablu with the prosecutrix/victim without her consent.
19. Learned Counsel for accused submitted that PW1 - Krishna 52 of 81 53 FIR No. 118/09 PS - S. P.Badli is complainant in the present case and has deposed that his daughter/prosecutrix (name withheld) was playing with accused Bablu and that he had taken his daughter and on the next day victim/prosecutrix (name withheld) was recovered from Ram Leela Ground, Badli.
In his crossexamination, PW1 has stated that, "It is correct that accused Bablu used to work with Tent House as Helper. It is correct that accused generally used to leave for his work at about 6:307:00 p.m. in the evening and return back from his work at about 7:00 - 7:30 a.m. on the next date. I had stated to the Police officials in my statement that the name of the landlord of Bablu is Sher Singh. It is correct that two more boys were also residing with accused Bablu in his room. I had called 100 No. from my mobile phone. PCR Officials had recorded my statement and obtained my signatures on the same. I had not visited the PS on the night of incident. PCR Officials remained at out place for about one hour. I had told to the PCR Officials about the description of clothes worn by my daughter. I had also stated in my statement Ex. PW1/E about the description of clothes worn by my daughter on the said date. Confronted with statement Ex. PW1/E where it is not so recorded. I had not stated to the Police officials the name of other two persons who were 53 of 81 54 FIR No. 118/09 PS - S. P.Badli residing with accused Bablu. It is correct that PCR Officials had made enquiries from those two persons who were residing with accused. It is wrong to suggest that the said two persons had told the PCR officials that Police Official from PS - S. P. Badli had visited my place............. I had stated to the Police in my statement Ex. PW1/E, "I went inside my house. The accused Bablu took my daughter to Ram Leela Ground at Badli Village. The accused did not bring my daughter back." Confronted with Ex. PW1/E where it is not recorded specifically. It is correct that I had signed all the documents at PS S. P. Badli.
Learned Counsel for the accused submitted that from the above discussion, the main point that comes up is that the girl child (victim) was allegedly recovered from Ram Leela Maidan, Badli that is easily accessible to all being a public place and is frequented by many public persons. Thus making the story/deposition of PW1 and prosecution highly unbelievable and further PW1 was specifically confronted with his previous statement regarding the aspect that accused Bablu had taken his daughter to Ram Leela Maidan and accused did not bring his daughter back.
I have carefully perused and analysed the evidence on 54 of 81 55 FIR No. 118/09 PS - S. P.Badli record.
PW1 - Sh. Krishna is the father of the victim girl, in his examinationinchief he has specifically deposed as to how her daughter/victim went missing on 24/05/2009 at about 8:30 p.m. He has deposed that on 24/05/2009 at about 8:30 p.m. he was standing outside his house. Her daughter/victim (name withheld) aged about 2½ years was also standing outside his house. The accused Bablu present in the Court picked up his daughter in his godi and started playing with her. After some time, he (PW1) asked him (accused Bablu) to hand over his daughter back to him on which he (accused stated that he wanted to play with her some more time and he (accused) would bring himself his (PW1) daughter back to his (PW1's) house.
Further, at the cost of repetition, the testimony of PW1 - Sh. Krishna is found to be in consonance with his statement made to the Police Ex. PW1/A bearing his signature at point 'A'.
It is well settled principle that statements of the witnesses have to be read as a whole and not in a manner to pick up a sentence in isolation from the entire statement and ignoring its proper reference.
On careful perusal and analysis of the testimony of PW1 55 of 81 56 FIR No. 118/09 PS - S. P.Badli Sh. Krishna, a rickshaw puller by occupation, it is found that he has deposed the facts, in the manner/sequence he though fit to narrate but in fact, there is no contradiction in his statement as pointed out by the Learned Counsel for the accused. His version on the core spectrum of crime has remained intact.
In the circumstances, it is pertinent to reproduce the relevant part of the examinationinchief of PW1 - Sh. Krishna, which reads as under : "On 24/05/2009 at about 8:30 p.m., I was standing outside my house. My daughter/prosecutrix (name withheld) , aged about 2½ years was also standing outside my house. The accused Bablu present in the Court picked up my daughter in his Godi and started playing with her. After some time I asked him to hand over my daughter back to me on which he stated that he wanted to play with her for some more time and he would bring himself my daughter back to my house. I went inside my house. The accused Bablu took my daughter to Ramlila Ground at Badli Village. The accused did not bring my daughter back. I searched for my daughter for the whole night but could not find her. Thereafter, I informed the police at 100 No. in the night. Police officials reached at my house at about 10:00 p.m. and SI Varun Dalal had also come. The police officials searched for my daughter but did not succeed. On the next day at about 7:00 a.m. accused Bablu came to his house. He had not brought my daughter back and when I made inquiries from him, he did 56 of 81 57 FIR No. 118/09 PS - S. P.Badli not give any satisfactory reply. I called the neighbourers at the spot, then on the pressure of the neighbours, he told that he had hide my daughter at Ram Lila ground, at Badli Village. Then we all went to the Ram Lila ground and saw that my daughter was lying there in naked condition and she was in unconscious condition. Blood was also found in dry condition on her private parts and on other body parts. Then we rang to the police at 100 no. and the police arrived at the spot immediately and my statement was recorded, same is Ex. PW1/A bearing my signature at point 'A'...."
Moreover, the recovery of the girl child victim from Ram Leela Maidan, Badli that is easily accessible to all being a public place and is frequented by many public persons does not falsify the case of the prosecution which is otherwise proved by clear, cogent and convincing evidence on the record.
Prosecution has discharged its initial burden that the victim girl was in the lap (godi) of accused lastly when she went missing on 24/05/2009 at about 8:30 p.m., with whom the accused was playing.
Accused was under an obligation to explain as to how and under what circumstances and where he left the victim girl. The absence of such an explanation both in the section 313 Cr.P.C. statement of the accused and his omission to lead any evidence in this regard and his 57 of 81 58 FIR No. 118/09 PS - S. P.Badli complete denial becomes an additional link in the prosecution case.
In case A. Shankar Vs. State of Karnataka, 2011 VII AD (SC) 37, the Hon'ble Supreme Court has held :
"....... Exaggerations per se do not render the evidence brittle. But it can be one of the factors to test the credibility of the prosecution version, when the entire evidence is put in a crucible for being tested on the touchstone of credibility. Therefore, mere marginal variations in the statements of a witness cannot be dubbed as improvements as the same may be elaborations of the statement made by the witness earlier.
Irrelevant details which do not in any way corrode the credibility of a witness cannot be labelled as omission 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 accused submitted that PW2 - Smt. Pushpa is the wife of PW1 - Krishna and mother of victim/girl child and in her examinationinchief has deposed that accused had taken away her daughter on 24/05/2009 and that her daughter was recovered from Ram 58 of 81 59 FIR No. 118/09 PS - S. P.Badli Leela Maidan on the next day.
In her crossexamination she has stated that, "we do not know accused Bablu prior to the incident. It is correct that prior to the incident,there was no talking terms or visiting terms with the accused. It is correct that the persons who were not acquainted with us, we do not send out children with them and to their houses. It is correct that I am aware about the residential address of the accused. It is correct that I had gone to the house of the accused in his search which factum I told to the Police officials. The others who were residing alongwith the accused had told me that accused Bablu had taken my daughter (Confronted with statement Ex. PW2/DA where it is not so recorded). It is correct that I came to know that Bablu had taken my daughter only after the other boys told me so. I do not remember if the Police officials recorded the statements of boys or not but they had recorded the names of the boys who had told that Bablu had taken my daughter. Ram Leela Ground is easily accessible to public persons. It is also correct that Ram Leela Ground is used by milk vendors who used to graze their cattle in the ground. I do not know whether the clothes worn by accused were seized or not. It is correct that PCR Officials had also recorded out statement in 59 of 81 60 FIR No. 118/09 PS - S. P.Badli night time when they arrived on 24/05/2009."
Learned Counsel for the accused submitted that the important point that come to the fore from the crossexamination of PW2 that she had admitted that they were told about the fact that their daughter (girl/child) was taken by accused Bablu by the two other boys who were residing with the accused. (Meaning thereby that their PW1 & PW2's version is based on hearsay information received. But the said two boys who were important source of information and who were enquired by the Police officials from PCR are not produced in the witness box and neither PCR Officials are produced in the witness box, who first went to the spot, collected photograph of child and made preliminary enquiries about the incident.
I have carefully perused and analysed the evidence on record.
On careful perusal and analysis of the testimony of PW2 - Smt. Pushpa, mother of the victim girl is found to be natural, clear, reliable and inspiring confidence. She has deposed in her cross examination "It is correct I came to know that Bablu had taken my daughter only after the other boys told me so". From above, it is clearly 60 of 81 61 FIR No. 118/09 PS - S. P.Badli indicated that she has clearly deposed the facts which she observed and experienced.
Nothing more can be read in it. This part of the deposition of PW2 cannot be forced upon PW1 - Sh. Krishna. Nor it can be argued that the version of PW1 - Sh. Krishna and PW2 - Smt. Pushpa is based upon hearsay information received especially in view of the fact that PW2 - Smt. Pushpa has nowhere stated in her entire testimony that her husband PW1 - Sh. Krishna also received information that Bablu had taken their daughter from the other two boys and further PW1 - Sh. Krishna in his examinationinchief has specifically deposed that : "...On the next day at about 7.00 am accused Bablu came to his house. He had not brought my daughter back and when I made inquiries from him, he did not give any satisfactory reply. I called the neighbourers at the spot, then on the pressure of the neighbours, he told that he had hide my daughter at Ram Lila ground, at Badli Village. Then we all went to the Ram Lila ground and saw that my daughter was lying there in naked condition and she was in unconscious condition. Blood was also found in dry condition on her private parts and on other body parts. Then we rang to the police at 100 no. and the police arrived at the spot immediately and my statement was recorded, same is Ex. PW1/A bearing my signature at point A..."
As regards the plea for nonproduction of the said two boys 61 of 81 62 FIR No. 118/09 PS - S. P.Badli who gave the information to PW2 - Smt. Pushpa and who were inquired by the Police officials from PCR and for the non production of the PCR Officials in the witness box who first went to the spot collected photographs of the child and made preliminary inquiries about the incident is concerned, undisputably, they are not cited in the list of witnesses. It is not the case of the accused that the said two boys and the Police officials were cited in the list of witnesses and have been withheld by the prosecution. As per section 134 of the Indian Evidence Act, 1872, no particular number of witnesses shall in any case be required for the proof of any fact. It is not the PCR officials who conducted the investigation in this case and as is indicated from the testimony of PW1 - Sh. Krishna that the PCR Officials arrived when a call was made at No. 100 and after inquiries, they left. As regards the said two boys, during the crossexamination of PW1 - Sh. Krishna, it was specifically suggested to PW1 - Sh. Krishna that the said two persons had told the PCR Officials that Bablu had gone to his work or that said two persons were called to the Police Station on the next day or that the said two persons had told SI Varun Dalal also that Bablu had gone for his work on 24/05/2009, which were negated by PW1 - Sh. Krishna.
62 of 81 63 FIR No. 118/09 PS - S. P.Badli The relevant part of the crossexamination of PW1 - Sh. Krishna reads as under : "It is wrong to suggest that the said two persons had told the PCR Officials that Bablu had gone to his work. It is wrong to suggest that the said two persons were called to the Police Station on the next day. It is wrong to suggest that the said two persons had told SI Varun Dalal also that Bablu had gone for his work on 24/05/2009..."
On careful perusal and analysis of the said suggestions so put to PW1 - Sh. Krishna, these very facts as reproduced hereinabove were in the specific knowledge of the accused. When the facts are especially within the knowledge of any person, the burden of proving those facts are upon that person as provided u/s 106 of the Indian Evidence Act.
Section 106 of the Indian Evidence Act, 1872 provides for burden of proving fact especially within knowledge.
It reads as under : "106. Burden of proving fact especially within knowledge. When any fact is especially within the knowledge of any person, the burden of proving that fact is upon him."
At the cost of repetition, it was for the accused to discharge 63 of 81 64 FIR No. 118/09 PS - S. P.Badli the burden of proving the said facts which were especially within his knowledge and regarding which the suggestions were put to PW1 - Sh. Krishna as reproduced hereinabove and which have been negated by PW1 - Sh. Krishna. Nor the same have at all being made probable much established by any cogent evidence by the accused.
The Hon'ble Supreme Court in case "Takhaji Hiraji Vs Thakore Kubersing Chamansing", 2001 IV AD (S.C) 393 has observed that : "It is true that if a material witness, which would unfold the genesis of the incident or an essential part of the prosecution case, not convincingly brought to fore otherwise, or where there is a gap or infirmity in the prosecution case which would have been supplied or made good by examining a witness which though available is not examined, the prosecution case can be termed as suffering from a deficiency and withholding of such a material witness would oblige the Court to draw an adverse inference against the prosecution by holding that if the witness would have been examined would not have supported the prosecution case. On the other hand if already overwhelming evidence is available and examination of other witnesses would only be a repetition or duplication of the evidence already adduced. Non examination of such other witnesses may not be material. In such a case the Court ought to scrutinies the worth of the evidence adduced. The Court of facts must ask itself Whether in the facts and circumstances of the case, it was necessary to examine such other witness, and if so, whether such witness was available to be examined and yet was being 64 of 81 65 FIR No. 118/09 PS - S. P.Badli withheld from the Court. If the answer be positive then only a question of drawing an adverse inference may arise. If the witnesses already examined are reliable and the testimony coming from their mouth is unimpeachable the Court can safely act upon it uninfluenced by the factum of nonexamination of the witnesses."
In the circumstances, there is no substance in the plea so raised by the Learned Counsel for the accused.
21. Learned Counsel for accused submitted that PW3 Dinesh is neighbour of PW1 as claimed by the prosecution and has deposed about the recovery of girl child from Ram Leela Ground in his examinationinchief.
In his crossexamination he has stated that "Krishna had telephone to the Police on 100 No. on 24/05/2009 but I cannot tell the exact time. PCR Official had not visited the house of Krishna after the call. PCR call was not made in my presence.... It is correct that prior to this incident Bablu was not having visiting and talking term with family of Krishna....... It is correct that Ram Leela Ground is easily accessible to public persons. It is correct that Krishna had not given the photographs of girl child to the Police officials who visited the house on 65 of 81 66 FIR No. 118/09 PS - S. P.Badli night of 24/05/2009 in my presence.......... It is correct that 3/4 other boys were also residing with accused Bablu. Police officials had made enquiry on 24/05/2009 in the night from two boys who were residing in the room of Bablu but I cannot tell their names. It is correct that I had seen prosecutrix/victim at the PS and not at Ram Leela Ground. It is correct that I came to know in the PS that it was accused Bablu who had taken the girl of Krishna."
Learned Counsel for accused submitted that from the above discussion and specially the last 3/4 lines as mentioned herein above it becomes clear that PW3 is a planted witness and he is not aware about the incident as played out by the investigating agency. Further he has contradicted the version of PW1 and PW2 as regards the visit and enquiry and investigation done by PCR Officials after the call at 100 No. was made.
I have carefully perused and analysed the evidence on record.
On careful perusal and analysis of the examinationinchief of PW3 - Dinesh, the same is found to be in consonance with the testimonies of PW1 - Sh. Krishna and PW2 - Smt. Pushpa. However, 66 of 81 67 FIR No. 118/09 PS - S. P.Badli during the crossexamination, he has oscillated on certain facts. His such oscillation on certain facts during the crossexamination does not falsify the case of the prosecution which is otherwise proved on record by clear, cogent and convincing evidence.
In the circumstances, there is no substance in the plea so raised by the Learned Counsel for the accused.
22. Learned Counsel for accused submitted that PW4 - Constable Rajesh Kumar has deposed that he had joined the investigation on 25/05/2009 with SI Varun Dalal and went to Ram Leela Ground and then joined investigation with W/ASI Raj Bala in the Hospital.
In his crossexamination he has denied that Ram Leela Maidan is a public place and is easily accessible to public persons or that many public persons were present much before he went there with SI Varun Dalal. He had stated in crossexamination that, "Accused Bablu had also signed the site plan as attesting witness. It is correct that none of the memos prepared pertaining to accused Bablu were not signed by any public witness".
I have carefully perused and analysed the evidence on 67 of 81 68 FIR No. 118/09 PS - S. P.Badli record.
On careful perusal and analysis of the testimony of PW4 - Constable Rajesh Kumar, it is found to be clear and cogent. He has deposed the facts which he observed and experienced. It is not made clear by the Learned Counsel for the accused as to what he wishes to indicate from the said part of the crossexamination of PW4 - Constable Rajesh Kumar and as to what benefit he intends to reap from it.
The Hon'ble Supreme Court in "Bharwada Bhoginbhai Jirjibhai 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 68 of 81 69 FIR No. 118/09 PS - S. P.Badli 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.
Moreover, the discrepancies pointed out during the cross examination of PW4 - Constable Rajesh Kumar do not go to the root of the matter and are the minor ones and does not falsify the case of the prosecution which is otherwise proved on record by clear, cogent and convincing evidence.
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 that : "21.............. This Court has repeatedly taken the view that 69 of 81 70 FIR No. 118/09 PS - S. P.Badli 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 70 of 81 71 FIR No. 118/09 PS - S. P.Badli 724], Narayan Chetanram Chaudhary and Another Vs. State of Maharashtra [(2000) 8 SCC 457], D. P. Chadha Vs. Triyugi Narain Mishra and Others [(2001) 2 SCC 205] and Sukhchain Singh Vs. State of Haryana and others [(2002) 5 SCC 100].
In the circumstances, there is no substance in the plea so raised by the Learned Counsel for the accused.
23. Learned Counsel for accused submitted that PW5 Pardeep Kumar has deposed that he has been informed by PW1 & 2 about missing of their daughter in the night of 24/05/2009 and that their daughter was found on the next day at Ram Leela Ground, Badli in unconscious condition.
In his crossexamination he has stated that, "Police had come to our house after 9:00 p.m. after we had reached at our house searching prosecutrix (name withheld). I am not sure whether the statement of Krishna was recorded by the Police or not at that time as we were indulge in searching the prosecutrix (name withheld). No photograph of prosecutrix (name withheld) was given by Krishna to the Police at that time as I recollect..... Police had made inquiries in the 71 of 81 72 FIR No. 118/09 PS - S. P.Badli neighbourhood from the neighbours regarding accused Bablu. The room of Bablu was opened and a boy who used to live with Bablu at that time when the room was shown to the Police, who had arrived at that time. Police had made inquiries from the boy who was found in the room of Bablu. No statement of that boy was reduced into writing by Police in my presence. One or two Constables of Police remained with us for tracing out prosecutrix (name withheld). Myself and Krishna had not gone to the Police Station to meet the SHO in the night time. The boy who was found in the room of Bablu after inquiries by the Police was left there only..... It is correct that there is a Police assistance booth near the red light signal of Badli adjoining to the wall of Ram Leela Maidan. I have never noticed any gate of the Ram Leela Maidan however there are two ingress leading to Ram Leela Maidan." He has admitted that Ram Leela Ground is easily accessible to all and that he never seen accused Bablu with girl child.
I have carefully perused and analysed the evidence on record.
On careful perusal and analysis of the testimony of PW5 - Pradeep Kumar, the same is found to be in consonance with the 72 of 81 73 FIR No. 118/09 PS - S. P.Badli testimonies of PW1 - Sh. Krishna, PW2 - Smt. Pushpa, PW3 - Dinesh and the investigation evidence on the record. His testimony is found to be clear, cogent, convincing and having a ring of truth. There are bound to be some discrepancies in the narration of witnesses when they speak out details.
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.
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).
In the circumstances, there is no substance in the plea so 73 of 81 74 FIR No. 118/09 PS - S. P.Badli raised by the Learned Counsel for the accused.
24. Learned Counsel for accused submitted that PW13 SI Varun Dalal has deposed that on receipt of DD No. 7A on 25/05/2009 regarding apprehension of a boy he went to attend the call and after becoming aware that the case pertains to sexual assault the further investigation was handed over to lady Police officer. He had prepared the Rukka and sent the same for registration of FIR. He is first IO in the present case.
In his crossexamination, he was confronted with his previous statement on various aspects. He had deposed that, "I had not prepared the site plan of the spot/place of Ram Leela Ground from where recovery of prosecution was made. He had also admitted that Ram Leela Ground is easily accessible to public persons.
I have carefully perused and analysed the evidence on record.
On careful perusal and analysis of the testimony of PW13 - SI Varun Dalal, the same is found to be the description of the part of the investigation which he carried out. During his crossexamination, he has 74 of 81 75 FIR No. 118/09 PS - S. P.Badli been confronted with his previous statement on various aspects. I have carefully gone through the same which are found to be the lapses or irregularities on the part of the investigation but they do not go to the root of the matter nor dislodges 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 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 and further there are bound to be some discrepancies in the narration of the witnesses when they speak out details. The corroboration of evidence with mathematical niceties cannot be expected in criminal cases.
In the circumstances, there is no substance in the plea so raised by the Learned Counsel for the accused.
25. Learned Counsel for accused submitted that W/ASI Raj Bala is second IO in the present case and has filed the challan after completion of investigation.
In her crossexamination she had admitted that no clothes of 75 of 81 76 FIR No. 118/09 PS - S. P.Badli accused were seized by her and also that she had not shown the spot in the site plan of the recovery of clothes (TShirt and undergarments) at the instance of accused. She had further admitted to various lapses made by her during the course of investigation.
I have carefully perused and analysed the evidence on record.
On careful perusal and analysis of the testimony of PW16 - W/ASI Raj Bala, the subsequent IO, the same is found to be a description of the investigation carried out by her. It is not made clear by the Learned Counsel for the accused as to what benefit he intends to reap from the part of the crossexamination of PW16 - W/ASI Raj Bala regarding which the plea has been raised. During her examinationin chief PW16 - W/ASI Raj Bala, has specifically deposed that "Accused Bablu got recovered one red coloured TShirt and Katthai colour Kachi of victim, in pursuance of the disclosure statement from the Ram Leela Ground. The same were put upto (into) in the kallandra (pullinda) and sealed with the seal of 'VD' and seized vide memo Ex. PW1/F bearing my signature at point 'X'."
She also identified and proved the red coloured TShirt and 76 of 81 77 FIR No. 118/09 PS - S. P.Badli one baby underwear of dark brown colour as Ex. P1.
PW16 - W/ASI Raj Bala during her crossexamination has candidly stated that the place of the recovery of the TShirt and the Katthai colour undergarment of the victim had not been shown in the site plan Ex. PW16/A. Nothing more can be read in her such statement. She prepared the site plan as was necessary for the purpose of investigation and nonmarking of the place of the recovery of the red coloured TShirt and Katthai colour undergarment of the victim in the site plan Ex. PW16/A does not falsify her testimony, nor the case of the prosecution which is otherwise proved on record by clear, cogent and convincing evidence.
As regards the plea of the Learned Counsel for the accused that PW16 - W/ASI Raj Bala admitted to various lapses made by her during the course of investigation, I have carefully perused and analysed her evidence. At the cost of repetition, her testimony is clear, cogent and a graphic details of the steps which she took during the course of investigation. 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 and further there are bound to be 77 of 81 78 FIR No. 118/09 PS - S. P.Badli some discrepancies in the narration of the witnesses when they speak out details. The corroboration of evidence with mathematical niceties cannot be expected in criminal cases.
In the circumstances, there is no substance in the plea so raised by the Learned Counsel for the accused.
26. Learned Counsel for accused submitted that the case is based on hearsay piece of evidence, admittedly both PW2 (mother of the girl child) and PW1 (father) have told that they were told by two room mates of accused that he had taken their daughter. Those two room mates of accused though admittedly were enquired, interrogated but neither their statements were recorded and nor were they cited as witnesses by the Investigating Agency. That the place of recovery of girl child is admittedly accessible to public at large. That no recovery was effected pursuant to alleged disclosure statement of accused. The spot from where allegedly clothes of child were recovered is not shown in the site plan by the IO. Further witnesses including PW5 had stated that Police had thoroughly checked and searched Ram Leela Ground and the 78 of 81 79 FIR No. 118/09 PS - S. P.Badli alleged recovery was effected subsequently and as such it is apparent that it is planted recovery. That the clothes worn by accused Bablu were not seized. That the PCR Officials have not been cited and examined as witnesses have stated that initially PCR Officials visited and conducted investigation.
I have carefully perused and analysed the evidence on record.
It appears that in the said submission, the Learned Counsel for the accused has summed up the pleas already taken and the same have already been dealt with in detail hereinabove.
Nonseizure of the clothes of accused Bablu during the course of investigation may be an investigational lapse but does not falsify the case of the prosecution which is otherwise proved on the record by clear, cogent and convincing evidence.
As regards of the nonjoining of the public witnesses, it is a matter of common experience that the public persons are reluctant to join the Police investigation.
In case Nirmal Singh & Ors. Vs. State 2011 III AD 79 of 81 80 FIR No. 118/09 PS - S. P.Badli (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."
In the circumstances, there is no substance in the plea so 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 the intervening night of 2425/05/2009 between 8:30 p.m. and 7:45 a.m., at Badli Village, accused Bablu kidnapped the prosecutrix/victim (name withheld being a case u/s 376 IPC) D/o Krishna, a minor girl aged around two years, while she was playing in front of her house No. 16, Shiv Mandir Mohalla, Badli Village, Delhi out of the lawful guardianship of her father Sh. Krishna without his consent and he kidnapped prosecutrix/victim with intention that the she would be forced or seduced to illicit intercourse or knowledge that she may be raped and he committed rape upon the minor victim girl aged around two years.
I accordingly, hold accused Bablu guilty for the offences 80 of 81 81 FIR No. 118/09 PS - S. P.Badli punishable u/s 363/366/376 IPC and convict him thereunder.
28. In view of above discussion, I am of the considered opinion that as far as the involvement of the accused Bablu in the commission of the offences u/s 363/366/376 IPC is concerned, the same is sufficiently established by the cogent and reliable evidence and in the ultimate analysis, the prosecution has been able to bring the guilt home to the accused Bablu beyond shadows of all reasonable doubts and there is no room for hypothesis, consistent with that of innocence of accused Bablu. I, therefore, hold accused Bablu guilty for the offences punishable u/s 363/366/376 IPC and convict him thereunder.
Announced in the open Court (MAHESH CHANDER GUPTA) on 24th Day of September, 2013 Additional Sessions Judge Special Fast Track Court (N/W District), Rohini, Delhi 81 of 81