Delhi District Court
State vs . (1) Jaibir @ Bintoo on 20 October, 2011
IN THE COURT OF Dr. KAMINI LAU: ADDL. SESSIONS
JUDGEII (NORTHWEST): ROHINI COURTS: DELHI
Session Case No. 86/11
Unique Case ID No. 02404R0044072008
State Vs. (1) Jaibir @ Bintoo
S/o Sh. Sunder Lal
R/o Village Ranikhera,
Delhi
(Acquitted)
(2) Ashish Sharma
S/o Sh. Shiv Prashad
R/o E1/340, Shivram Park,
Nangloi, Delhi
(Acquitted)
FIR No.: 253/08
Police Station: Nangloi
Under Sections: 363/366/376/34 IPC
Date of committal to session Court: 10.7.2008
Date on which orders were reserved: 30.9.2011
Judgment announced on: 20.10.2011
JUDGMENT:
As per allegations on 22.12.2007 at about 7:00 Am from Shani Bazar Road, Nangloi the accused Jaibir @ Bintoo kidnapped the St. Vs. Jaibir @ Bintoo & Anr, FIR No. 253/08, PS Nangloi Page No. 1 of 44 prosecutrix 'S' (name of the prosecutrix is withheld as this is a case under Section 376 IPC) aged about 14 years (minor) from the lawful guardianship of her father Sh. Rohtash in order that she may be forced or seduced to illicit intercourse and committed rape upon her in a car. It is also alleged that on 9.4.2008 at about 4:00 PM at house no. H1/B, Shivram Park, Nangloi kidnapped the prosecutrix 'S' aged about 14 years (minor) from the lawful guardianship of her father Sh. Rohtash in order that she may be forced or seduced to illicit intercourse and committed rape upon.
BRIEF FACTS/ CASE OF THE PROSECUTION:
The case of the prosecution is that on 9.4.2008 DD No. 44 was received in Police Post Nihal Vihar regarding kidnapping of a girl by a boy Bittoo, ASI Mahender Singh along with Ct. Shodan went to House No. H1/B, Shivram Park where one Rohtas met them who told that his daughter 'S' was taken by Bintoo or Ashish. Therefore DD No.4 was kept pending and on 10.4.2008 the girl 'S' and the boy Ashish came to the police post along with the parents of the girl. ASI Mahender Singh recorded the statement of the prosecutrix wherein she had informed the police that on the night of 21.12.2007 the accused Bintoo whom she called as Chacha telephoned her and asked her to meet him on which in the morning of 22.7.2011 she went to meet Bintoo at Shani Bazar Road, Nangloi when Bintoo took her in a car and raped her and threatened her St. Vs. Jaibir @ Bintoo & Anr, FIR No. 253/08, PS Nangloi Page No. 2 of 44 not to tell about the incident to anybody due to which reason she did not tell anything to anybody. The prosecutrix further told the Investigating Officer that after some days one boy namely Ashish became her friend and she told the incident to Ashish but Ashish told the said incident to her chacha namely Sonu. Thereafter Ashish promised to marry her and took her to Aligarh where his Mama was residing but the father of Ashish made a telephonic call to Aligarh on which Ashish took her to Delhi.
On the basis of the said statement of the prosecutrix the present case was got registered and both the accused were arrested. After completion of investigations charge sheet was filed against both the accused.
CHARGE:
The Ld. Predecessor of this Court has settled the charges under Sections 363/366/376 (2) (f) Indian Penal Code against the accused persons to which they pleaded not guilty and claimed trial. EVIDENCE:
In order to prove its case the prosecution has examined as many as twenty one witnesses as under:
Prosecutrix/ public witnesses:
PW1 is the prosecutrix 'S' who has deposed that on 21.12.2007 she was studying in 7th Standard in GRM Public School, St. Vs. Jaibir @ Bintoo & Anr, FIR No. 253/08, PS Nangloi Page No. 3 of 44 Nilothi Moth, Delhi and his father was doing the job of driver.
According to the witness, the accused Bintoo was working as conductor with his father and she used to address the accused Bintoo @ Jaiveer as Chacha. She has deposed that on 21.12.07 she received a telephone call from accused Bintoo who wished to talk to her father on which she took the telephone inside room where her father was available but by that time the phone was disconnected and after little later again she received a telephone call from accused Bintoo who proposed to meet her on the next day i.e. 22.12.2007 morning at around 7:00 AM at Shani Bazar Road. PW1 has further deposed that on 22.12.2007, she reached Shani Bazar Road at 7 AM believing accused Bintoo as her Chacha and the moment she reached near a parked Car she was pulled inside by accused Bintoo and the words "DP" were written on the right side front mirror of the said car. She has testified that accused Bintoo took her to some place in the said car which was being driven by him and at some place he had stopped the car and pressed her neck and also threatened not to raise the alarm after which he committed rape with her and thereafter accused drove the car back towards her house and dropped her in the gali where her house is situated. She has also deposed that she again received a telephonic call from accused Bintoo who threatened her not to disclose the above incident to anybody otherwise he would kill her father and her brother and being threatened she did not mention the above incident to anybody. The witness has also deposed that a girl namely Mamta who St. Vs. Jaibir @ Bintoo & Anr, FIR No. 253/08, PS Nangloi Page No. 4 of 44 used to come to take tuition in a house nearby her house became acquainted with her who introduced her to a boy namely Ashish. She has testified that she disclosed the incident of rape committed upon her by accused Bintoo to Ashish who told her that he had good connections and would get accused Bintoo killed but Ashish narrated the above facts to her Chacha Sonu. According to PW1, one day she received a telephonic call from accused Ashsish who tole her that since her Chacha Sonu knew about the above incident of rape hence there is every possibility that Chacha Sonu would kill her. She has deposed that Ashish thereafter promised to marry with her and asked her that she should accompany him and accordingly she met Ashish outside her school when Ashish took her to the house to his chachi at some place in Delhi whose name she is not aware but the said Chachi and after a while the Chachi of Ashish accused left the house after which accused Ashish raped her in the said house. She has testified that thereafter on the pretext of marrying her accused Ashish took her to Aligarh to the house of his mama but the Mama of accused Ashish had already received a call from the father of Ashish so his Mama advised them to go back to Delhi after which accused Ashish brought her to Delhi where she alongwith accused Ashish went to Police Post Nihar Vihar. She has proved that she was interrogated by the police and her statement was recorded which is Ex.PW1/A. She has also deposed that police took into possession her St. Vs. Jaibir @ Bintoo & Anr, FIR No. 253/08, PS Nangloi Page No. 5 of 44 Salwar which she was wearing on 22.12.2007 vide memo Ex.PW1/B. According to her, the police thereafter took her to Sanjay Gandhi Memorial Hospital where she was medically examined on 11.4.2008 and the doctor had taken into possession her clothes which she was wearing on the date of examination. The witness has further testified that her date of birth is 28.3.1995 and the school certificate to this effect is Mark PW1/X. She has also proved that the police took her before the Magistrate where her statement was recorded by the Magistrate and she signed the said statement which is Ex.PW1/C. She has placed on record the original birth certificate issued by MCD, Government of NCT, Delhi photocopy of which is Ex.PW1/D and photocopy of the school certificate which is Ex.PW1/E. The witness has correctly identified both the accused Jaiveer @ Bintoo and Ashish and also the case property that is one mud colour salwar which she was wearing on 22.12.07 which is Ex.P1 and one black colour salwar which she was wearing on the day of medical examination which is Ex.P2.
In her crossexamination the witness has deposed that her date of birth mentioned in the birth certificate issued by MCD Ex.PW1/D is wrongly written. She has admitted that her date of birth is 28.3.1995 and police had recorded her statement in this case and has voluntarily stated that the police obtained her signatures on the blank St. Vs. Jaibir @ Bintoo & Anr, FIR No. 253/08, PS Nangloi Page No. 6 of 44 papers. She has also admitted that she had signed all blank papers in this case and has deposed that she did not state the above facts to the police in her statement to the police. The witness has admitted that the accused Ashish never done any wrong act with her nor raped her and nor took her out of Delhi. She has also admitted that Ex.PW1/E is the school report issued by the school and states that her grandmother went with her at the time of admission to GRM Senior Secondary School, Nilothi for Nursery. PW1 has also deposed that she was admitted in nursery class at the stage of 56 years but she is not aware who got registered her date of birth with MCD. She has further deposed that her bone X ray for age determination was got conducted at Sanjay Gandhi Memorial Hospital. She has denied the suggestion that as on date she is aged around 2021 years but has admitted that she has oxlary hairs in her armpit for the last four years and pubic hair for the last four years. According to her, on 22.12.07 she attended her school and returned to her home after completing the school. The witness has also deposed that she started for school on the above said date about 7.30 AM and reached at right time. The witness has also deposed that she is having friends in the school but she did not disclose the incident to any of her school friend. She has admitted that accused Jaivir did not commit rape upon her and states that she did not voluntarily gave her statement under Section 164 Cr.P.C. which she gave at the instance of the St. Vs. Jaibir @ Bintoo & Anr, FIR No. 253/08, PS Nangloi Page No. 7 of 44 Investigating Officer. She has further deposed that she was wearing school uniform on 22.12.07 containing gray skirt and white shirt and was not wearing salwar on 22.12.07. PW1 has admitted that accused Jaivir neither brought any car nor dragged her inside the car nor he took her outside in the said car. She has also admitted that Jaivir never telephoned her and never asked her to meet.
PW2 Smt. Saroj is the mother of the prosecutrix who has deposed that she is having three children out of which one is son namely Saurav and two daughters namely Nidhi and the prosecutrix 'S'. According to the witness Nidhi is elder to the prosecutrix 'S' and 09.04.08 when she was at her house she noticed that her daughter 'S' was not available on which she called her dever namely Sunil by making him telephone call on which Sunil came back to home and called the police at number 100 pursuant to which police came to her house. The witness has also deposed that she had told to the police about the missing of her daughter and on the next day she and her husband Rohtash went to police post Nihal Vihar and inquired about the prosecutrix after which they came back to their house. PW2 has testified that on the same day at about 4.00 PM she and her husband again went to police post Nihar Vihar where she saw her daughter and accused Ashish but her daughter did not tell her anything. The witness has testified that her daughter remained at the police post whereas she and her husband were sent back St. Vs. Jaibir @ Bintoo & Anr, FIR No. 253/08, PS Nangloi Page No. 8 of 44 to their home. According to her, on the next day when she again went to police post where she met her daughter who told her that on 24.12.07 she was taken by Bintoo @ Jaibir and thereafter her daughter did not tell her anything in the police post. The witness has testified that her daughter was taken to Court and then to Naari Niketan but she did not recollect if she had given any clothes to the police or not. She has deposed that that police took her daughter for medical examination to SGM Hospital, Mangol Puri after which the doctor handed over some pullandas to the police which they had seized vide memo Ex.PW2/A. She has proved that both the accused were arrested vide arrest memo Ex.PW2/B and Ex.PW2/C where she signed at point A. The witness has also deposed that she had produced the birth certificate of her daughter which was seized by police vide memo Ex.PW2/D copy of which certificate is Mark PW2/D. PW2 has testified that date of birth of her daughter is 28.3.95 and that she had given the salwar of her daughter to the police which they had seized vide memo Ex.PW2/B. She is not aware if the said salwar was converted in a sealed pulanda by the police. She has placed on record the birth certificate issued by MCD Sub Registrar, Birth and Death bearing no. 112718, photocopy of which is Ex.PW2/F and it has been observed by the Court that there was an overwriting on the date of issue at point X. The witness has also placed on record another certified copy of birth certificate of the prosecutrix which is St. Vs. Jaibir @ Bintoo & Anr, FIR No. 253/08, PS Nangloi Page No. 9 of 44 Ex.PW2/G. According to PW2, her daughter told her that accused Bintoo forcibly too her in a black coloured car in a deserted area and committed rape on her and due to fear of the accused and fear of being defamed, she (prosecutrix) did not disclose these facts to her (witness). She has testified that her daughter had told her that these facts have been disclosed by her to the accused Ashish who told her (prosecutrix) that he disclosed the incident of rape to the uncle and threatened her that the uncle would kill her and asked her to accompany him. According to the witness, the prosecutrix told her that thereafter accused Ashish took her to Aligarh in the house his maternal uncle where he committed rape on her and further asked the prosecutrix "Terese ab Shadhi khon karega, ab tu merese shadhi karle." PW2 has further deposed that her daughter (prosecutrix) narrated entire facts to the police in her statement. She has correctly identified both the accused in the court and the case property that is one salwar of mud colour which is Ex.P1 and one salwar of black colour which is Ex.P2.
In her crossexamination the witness has deposed that the prosecutrix was born at home and was admitted in a private school but has denied the suggestion wrong date of birth was mentioned at the time of admission so that the prosecutrix could get the benefit of young age. According to her, the prosecutrix is aged about 15 years. She has further deposed that she was told by the police officials about the contents of the St. Vs. Jaibir @ Bintoo & Anr, FIR No. 253/08, PS Nangloi Page No. 10 of 44 documents which were signed by him and nobody else signed the document when she signed the document Ex.PW2/A. According to PW2, she did not obtain birth certificate herself from MCD and the same was handed over to her by Nurse/Dai. She has denied the suggestion that she had filed a forged and false certificate of date of birth of her daughter. She has admitted that in her statement Ex.PW2/DA it is not specifically recorded that she visited Nihal Vihar Chowki on 10.04.2008 or that her daughter met her in Nihal Vihar Police Chowki on 10.04.2008 and has voluntarily stated that it has been recorded in her statement that on 10.04.2008 accused Ashsih Sharma brought her daughter at Nihal Vihar Chowki and she inquired from her daughter. She has testified that she had never met with the accused Ashish prior to the incident and she never saw her daughter along with accused Ashish. According to her, when ASI Mahender visited their house first time she along with her Devar Sunil @ Sonu were present at her house but she does not remember if ASI Mahender did writing work at her house and states that ASI Mahender only made inquiries from them. The witness has further deposed that she never noticed her daughter in upset condition or doing any abnormal behaviour prior to the incident. She has denied the suggestion that her daughter was caught with another boy about two months prior to this incident or that she in connivance with her daughter falsely implicated the accused Ashish in the present case just to extort St. Vs. Jaibir @ Bintoo & Anr, FIR No. 253/08, PS Nangloi Page No. 11 of 44 money from him.
PW6 Sh. Rohtash is the father of the prosecutrix who has deposed that he is the driver by profession and driving the private vehicle. According to him, on 09.04.2008 he made a call on 100 number to the police about the missing of his daughter aged about 12 years and went to Police Station where he told to ASI Mahender Singh that he is not aware about the actual fact of missing of his daughter due to which reason he would come on the next day for starting the legal proceedings. He has also deposed that on 10.04.2008 he again went to Police Station and met ASI Mahender Singh and on the same day, his daughter and Ashish reached Police Post Nangloi. According to the witness, his his wife also reached there and his daughter told his wife that Ashish kidnapped her and also committed rape on her. The witness has testified that his daughter told him that on 22.12.2007 Jaibir @ Binto came at Shani Bazar Road in a black coloured vehicle and when his daughter was passing near the vehicle, he (Jaibir) opened the door and caught hold the hand of his daughter dragged inside the car and kidnapped her for a distance and thereafter, committed forcibly rape on her and after giving threat, he released his daughter. According to him, these facts were not disclosed by his daughter because of the fear of defame and threat of the accused. PW6 has also deposed that the accused Ashish was studying in the same school where his daughter was studying and his daughter told St. Vs. Jaibir @ Bintoo & Anr, FIR No. 253/08, PS Nangloi Page No. 12 of 44 Ashish about the incident of 22.12.2007 and on the pretext of this incident accused Ashish induced his daughter for marrying her and took her to Aligar but maternal uncle (Mama) of accused Ashish sent them back after which they came to police Nangloi. He has deposed that his daughter also told him that Ashish raped her without her consent. The witness has testified that police got medical examination of his daughter from Sanjay Gandhi Memorial Hospital and also arrested both the accused and recorded his statement. He has correctly identified both the accused in the Court.
In his crossexamination the witness has denied that his daughter did not tell anything about the rape and kidnapping or that he submitted the wrong date of birth in the school of his daughter. According to him, he has three children and the prosecutrix is his eldest daughter. The witness has admitted that the accused Jaibir was his friend as they were working together as he was driver and he was helper in the same bus prior to the incident. PW6 has further deposed that his daughter was born after two years of his marriage he was not aware of the incident prior to coming of his daughter at Police Station on 10.04.2008. He has further deposed that he came to know the incident which happened with his daughter on 10.04.2008 and in the night of 09.04.2008 father of the accused Ashish told him that his daughter was coming to Delhi from Aligarh due to which reason he along with his family reached the police station at about 9.00 AM. According to PW6, St. Vs. Jaibir @ Bintoo & Anr, FIR No. 253/08, PS Nangloi Page No. 13 of 44 his statement was recorded by the police on 10.04.2008 at Police Station and in his presence he is not aware whose statement was recorded by the police as he was sitting outside the room. He has denied that the police got his signatures affixed on blank papers. The witness has clarified that his eldest daughter is Nidhi and the prosecutrix is the second one but he does not remember her date of birth and states that she was born after the six years of birth of Nidhi. He has admitted that his daughter Sandhya used to attend school daily but has denied that on 10.04.2008 he brought his daughter to home from Police Station. According to him, he himself did not telephone at no. 100 on 09.04.2008 and does not remember whether police recorded his statement on 09.04.2008 or on 10.04.2008. He has denied the suggestion that the police did not record the statement of his wife of 09.04.2008 or on 10.04.2008 or that in his presence statement of his wife was not recorded by the police. PW6 has further denied the suggestion that in his presence none of his family members signed the documents prepared by the police officials or that the police officials recorded his statement of their own. Medical witnesses:
PW4 Dr. P.C. Prabhakar Medical Officer, Sanjay Gandhi Hospital, Delhi has deposed that on 11.04.2008 at about 12.50 PM, W/Ct. Sushila No.10407 DAP brought the prosecutrix 'S' aged about 14 years for her medical examination and preservation of under garments St. Vs. Jaibir @ Bintoo & Anr, FIR No. 253/08, PS Nangloi Page No. 14 of 44 and vagina swab with history of victim of sexual assault. According to the witness on examination the patient was conscious and oriented; her vitals were stable and on local examination no external injury was found over her body. The witness has testified that he referred the patient to Gynecologist on duty for further examination, preservation of HVS and under garments. He has proved the MLC of the prosecutrix which is Ex.PW4/D. PW4 has further proved that on 11.04.2008 at about 12.25 PM, Jaibir @ Bantoo was brought by Ct. Shri Bhagwan for medical examination and preservation of blood sample and on examination the patient was found conscious and oriented and there was nothing to suggest that the person was not capable of performing the act of sexual intercourse. According to him, the blood sample of Jaibir @ Bantoo was taken, sealed and handed over to the Investigating Officer. He has proved the MLC of accused Jaibir @ Bintoo which is Ex.PW4/C. The witness has further testified that on 11.04.2008 at about 12.37 PM one Ashish Sharma S/o Sh. Shiv Prasad Sharma, aged 20 years, male was brought from Police Station Nangloi by Ct. John Pattirick for medical examination and preservation, patient was conscious and oriented. According to him, on examination there was nothing to suggest that the person was not capable of performing the act of sexual intercourse. He has proved the MLC of the accused Ashish which is Ex.PW4/A and having taken the blood sample and under garments sealed and handed St. Vs. Jaibir @ Bintoo & Anr, FIR No. 253/08, PS Nangloi Page No. 15 of 44 over to the police. This witness has not been able to identify the case property.
With the permission of the Court he was crossexamined by the Ld. Addl. PP for the State wherein he has admitted that he had put the undergarment i.e. underwear of Ashish in cloth parcel Ex.PW4/B and had also mentioned on it the particulars of the case as well as the MLC number. He recollected that the underwear shown to him was the same underwear of Ashish which was seized and sealed by him. The said witness has not been crossexamined by the Ld. Defence Counsels.
PW5 Dr. Veenu Gupta Senior Resident, Sanjay Gandhi Hospital has deposed that she was working in SGM Hospital Mangolpuri for the last more than two years and Dr. Roopinder Dogra was senior resident in this hospital and she had worked with her. After seeing the MLC No. 3858 of the prosecutrix 'S', the witness has deposed that portion of MLC Ex.PW4/D encircled in blue ink is in the handwriting of Dr. Roopinder Dogra which portion is Ex.PW5/A bearing the signatures of Dr. Roopinder Dogra at point B. According to her, as per Ex.PW5/A the patient with history of victim of sexual assault, was brought for medical examination from police station Nangloi. She has deposed that the last menstrual period was 15.03.2008; duration of period was three to four days and cycle length was 2831 days; the cycle was regular with normal flow and the patient attained menarche one year back. The St. Vs. Jaibir @ Bintoo & Anr, FIR No. 253/08, PS Nangloi Page No. 16 of 44 witness has also deposed that on examination, patient was conscious oriented and her general condition was stable; pulse rate was 74 per minute; on local examination no external injuries over body were present; on local examination of the private part it was found that the hymen torn with admitting one finger easily. She has proved that on per vaginal examination, uterus was anteverted, normal size, mobile and bilateral fornices were free. She has testified that Dr. Roopinder Dogra sealed the undergarment (salwar), high vaginal swab and two slides of vaginal smear and handed over to the Investigating Officer the endorsement in this regard is at point C. In her crossexamination the witness has admitted that the age of the hymen torn does not find mention in portion Ex.PW5/A and has voluntarily added that Dr. Roopinder Dogra would not have been able to determine the age of hymen torn as sometimes it is very difficult to state the age of the hymen torn but in case of old hymen torn, they can comment to the effect the hymen torn is old but in case the hymen torn is recent then it is difficult to comment upon the age of the hymen torn. She has further admitted that the recent tearing of hymen is not written in Ex.PW5/A. PW17 Dr. Amitabh Bhasin has deposed on behalf of Dr. Vipul Mishra and has proved that on 24.10.2008 the prosecutrix was brought to SGM Hospital for her age determination and Dr. Vipul St. Vs. Jaibir @ Bintoo & Anr, FIR No. 253/08, PS Nangloi Page No. 17 of 44 Mishra after examining the Xray of the bones, opined that the prosecutrix was more that 15 years but less than 17 years which report is Ex.PW17/A. In his crossexamination the witness has admitted that the patient was not examined by him personally nor the report Ex.PW17/A was prepared in his presence.
PW18 Dr. Divpreet Sahani, Dental Surgeon from Sanjay Gandhi Hospital has proved that on 24.10.2008 the dental examination of the prosecutrix was conducted by him for her age determination. According to her, as per the Xray of the mouth only crown formation was present and therefore he opined that the bone age on the point of dental side was about 16 to 17 years which opinion is from point Y to Y on report Ex.PW17/A. He has not been crossexamined by the Ld. Defence Counsels.
PW19 Dr. V.K. Jha Medical Officer, BJRM Hospital has proved that on 24.10.2008 he examined the prosecutrix along with the other board members Dr. Vipul Mishra, Radiologist, Dr. Divyapreet Sahni Dentist and Dr. Manoj Dhingra Forensic Expert. According to him, after examination the age of the prosecutrix was found to be above 17 years and less than 18 years which report is Ex.PW17/A bearing his signatures at point C & D. He has not been crossexamined by the Ld. Defence Counsels.
St. Vs. Jaibir @ Bintoo & Anr, FIR No. 253/08, PS Nangloi Page No. 18 of 44 Police/ official witnesses:
PW3 Sh. R.K. Gautam SubRegistrar, Birth & Death, MCD, Najafgarh Zone, Delhi has brought the death and birth register of the year 1995 of SubCenter, Nangloi on its page No.92 at serial No.1166, the registration of birth of Pradeep Kumar S/o Sh. Girdhari Lal and Smt. Rama Wati is mentioned where the date of registration had been shown on 24.04.1995. After seeing the certificate of birth Mark PW2/E the witness has deposed that the same does not find mention in the Register brought by him at serial No. 1166 and the correct details about mark PW2/E can only be clarified by the SubRegistrar, SubCenter, Nangloi posted on 04.04.1995. He has placed on record the photocopy of the serial No. 1166 of the original register brought by him which is Ex.PW3/A. He has not been crossexamined by the Ld. Defence Counsels.
PW7 HC Narender Kumar is the MHCM who has deposed that on 11.04.2008 he was posted as MHC(M) at Police Station Nangloi and on that day W/SI Savita deposited six sealed parcels along with three sample seal and he made entry in this regard in register No.19 in serial No.5311, copy of which is Ex.PW7/A. According to him, on 14.04.2008 W/SI Savita deposited one sealed parcel pursuant to which he made entries in register No.19 at serial No. 5325, copy of which is Ex.PW7/B. He has also deposed that on 29.04.2008 seven parcels and St. Vs. Jaibir @ Bintoo & Anr, FIR No. 253/08, PS Nangloi Page No. 19 of 44 three sample seals were sent to FSL Rohini through Ct. Rajesh Vide RC No. 106/21 and he made entry in this regard at point X on Ex.PW7/A but the parcels could not be deposited on 29.04.2008 due to which reason they were again sent on 30.04.2008 through Ct. Rajesh and he made entry in this regard at point Y on Ex.PW7/A. The witness has also testified that on 23.01.2009 seven sealed parcels with sample seal and result were deposited by W/SI Savita and result was handed over to the Investigating Officer and he made entry in this regard at point Z on Ex.PW7/A. He has placed on record the copy of RC No.106/21 which is Ex.PW7/C and copy of the receipt issued by FSL Rohini about the deposit of case property which is Ex.PW7/D. In his crossexamination the witness has deposed that the duty hours of the MHC(M) are around the clock and on 11.04.2008 W/SI Savita deposited the parcels at about 6.00/6.30 PM. According to him, on 14.04.2008 W/SI Savita deposited one parcel at about 5.00/5.30 PM duly sealed with the seal of NK and on 29.04.2008 the parcels were sent at about 10.00/10.30 AM. He has further deposed that all the parcels were deposited back in the Malkhana at 3.00 PM by Ct. Rajesh.
PW8 Dr. Dhruv Sharma, Sr. Scientific Officer, Biology, FSL, Rohini Delhi has deposed that on 30.04.2008 seven sealed parcels were received in the office of FSL for their examination. According to the witness, he had given all the parcels serial no.1 to 7 and opened all St. Vs. Jaibir @ Bintoo & Anr, FIR No. 253/08, PS Nangloi Page No. 20 of 44 the parcels by breaking the seal and their contents were given Ex. No.1, 2, 3A and 3B, 4, 5, 6 and 7 and examined them biologically and prepared his detailed report in this regard. He has proved the biological report in respect of the samples which is Ex.PW8/A and has deposed that Ex. No. 4, 5, 6 and 7 were examined serologically after which he prepared his detailed report in this regard which is Ex.PW8/B. He has not been crossexamined by the Ld. Defence Counsels and his testimony has gone uncontroverted.
PW9 HC Jai Bhagwan is a formal witness being the Duty officer who has deposed that on 10.04.2008 he was posted as Duty Officer at Police Station Nangloi from 5.00 PM to 1.00 AM night. According to him, on that day at about 10.30 PM Ct. Saudhan Singh brought a rukka sent by ASI Mohinder Singh for registration of FIR pursuant to which he got recorded FIR through Computer Operator as per rukka under Section 363/366/376/34 IPC, photocopy of the computer generated copy of which is Ex.PW9/A. He has proved having made his endorsement on the rukka which is Ex.PW9/B and has deposed that the investigations of this case was assigned to SI Savita.
In his crossexamination the witness has admitted that he did not personally hand over any document pertaining to the present case either to ASI Mohinder Singh or SI Savita. According to him, he made endorsement vide DD No. 54A about registration of the FIR and has St. Vs. Jaibir @ Bintoo & Anr, FIR No. 253/08, PS Nangloi Page No. 21 of 44 admitted that the said DD is not on judicial record. He has denied that the FIR is antitime and antidated or that the contents of the FIR were manipulated.
PW10 Ct. Shri Bhagwan has deposed that on 11.04.2008 he was posted at Police Post Nihal Vihar of Police Station Nangloi and on that day, ASI Mohinder Singh sent him to SGM Hospital for medical examination of accused Jaivir @ Baintoo and handed over the application in this regard. The witness has further deposed that he along with accused Jaivir reached the hospital and after medical examination, doctor handed over one sealed parcel containing the blood sample of the accused and one sample seal to him. He has proved that he collected the MLC and returned back to the Police Station and handed over the MLC and the parcel to the Investigating Officer who seized the same vide memo Ex.PW10/A. He has proved that the accused Jaivir was arrested vide memo Ex.PW2/B and his personal search was conducted vide memo Ex.PW10/B and after the arrest of the accused they went to place of incident where accused Jaibir @ Bintoo and accused Ashish Sharma pointed out the place of incident pursuant to which the Investigating Officer prepared the pointing out memo which is Ex.PW11/E and Ex.PW11/F. He has deposed that thereafter both the accused persons were sent to judicial custody after producing before concerned MM. He has correctly identified both the accused in the Court. St. Vs. Jaibir @ Bintoo & Anr, FIR No. 253/08, PS Nangloi Page No. 22 of 44 In his crossexamination the witness has deposed that he went along with Investigating Officer and the accused persons for pointing out the place of incident on 11.04.2008 at about 11.30 AM and they pointed out an abandoned place ahead of Shiv Ram Park. According to him, they went in a Santro Car which belonged to Sudhir a friend of accused Jaibir @ Bintoo. The witness has further deposed that one more police official Ct. John Patrick was also with them and the said car, as per statement of accused Jaibir @ Bintoo, was used by him in the incident. He has testified that the accused Jaibir @ Bintoo was arrested on 11.04.2008 at about 12.00 noon and at the time of arrest only ASI Mahender Singh was with them. PW10 has further deposed that arrest memo was prepared in police station and accused Jaibir was standing at Nangloi Chowk alone. According to him, the disclosure statement of accused Jaibir @ Bintoo was recorded in police station on 11.04.2008 at 1.30 pm which is Ex.PW11/C. He has further deposed that on 11.04.2008 he brought the sealed parcels from the hospital and handed over to the Investigating Officer at 12.30 PM. He has testified that at the time of recording of disclosure statement he along with ASI Mahender Singh and Ct. John Patrick were present. He has denied the suggestion that he did not join the investigation or that no disclosure statement was recorded by the Investigating Officer in his presence. St. Vs. Jaibir @ Bintoo & Anr, FIR No. 253/08, PS Nangloi Page No. 23 of 44 PW11 Ct. John Patrick has deposed on 11.04.2008 he was posted at Police Post Nihal Vihar of Police Station Nangloi and on that day, ASI Mohinder Singh, sent him to SGM Hospital, Mangolpuri for medical examination of accused Ashish after which he along with accused Ashish reached there and after medical examination, doctor handed over to him three sealed parcels and a sample seal alongwith MLC to him which he handed over to the Investigating Officer who seized the same vide memo Ex.PW11/A. The witness has further deposed that the medical examination of accused Jaivir was also got conducted on the same day by Ct. Shri Bhagwan. According to him, the accused Ashish and Jaibir were interrogated and arrested vide memo Ex.PW2/C and PW2/D and their personal search was conducted vide memo Ex.PW11/B and Ex.PW10/B. He has proved that the Investigating Officer recorded the disclosure statement of the accused persons vide memo Ex.PW11/C and Ex.PW11/D. The witness has also deposed that both the accused persons were produced before the concerned MM and sent to judicial custody. He has correctly identified both the accused persons in the Court.
In his crossexamination the witness has deposed that his statement was recorded by the Investigating Officer on 11.04.2008 and he had gone through the contents of the same. According to him, he had had stated in his statement that both the accused pointed out the place of St. Vs. Jaibir @ Bintoo & Anr, FIR No. 253/08, PS Nangloi Page No. 24 of 44 occurrence but when confronted with his statement Ex.PW11/DA it was not found so recorded. He has admitted that all the facts which occurred in his presence are mentioned in his statement under Section 161 Cr.P.C. Ex.PW11/DA. He has also admitted that it is not mentioned in his statement that any of the accused were interrogated in his presence by the Investigating Officer. The witness has also admitted that the contents of the disclosure statements of any accused are not mentioned in his statement Ex.PW11/DA. He has denied the suggestion that he had signed various documents at Police Station at the instructions of the Investigating Officer or that no proceedings were conducted by the Investigating Officer in his presence nor any inquiry or interrogation was made.
PW12 WCt. Sushila has deposed that on 11.4.2008 she was posted at Police Station Nangloi and had joined investigations along with SI Savita, ASI Mahender Singh Dahiya and prosecutrix 'S'. She has further deposed that on the instructions of the Investigating Officer she took the prosecutrix to SGM Hospital for her medical examination and the mother of the prosecutrix accompanied them. According to the witness, the medical examination of the prosecutrix was conducted by the doctor who prepared the MLC and handed over to her one sealed pullanda containing undergarment, on pullanda containing slide of vaginal swab, one small slide and one sample seal of SGM hospital. She St. Vs. Jaibir @ Bintoo & Anr, FIR No. 253/08, PS Nangloi Page No. 25 of 44 has proved that she handed over the sealed pullandas and the MLC to the Investigating Officer who seized the same vide memo Ex.PW2/A after which the prosecutrix was produced before the Ld. MM as on the directions of Ld. MM the prosecutrix was sent to Nirmal Chaya.
In her crossexamination the witness has deposed that she had signed only on her statement under Section 161 Cr.P.C. She has admitted that she did not sign any other document except her statement but has denied the suggestion that she never went to SGM Hospital along with the prosecutrix nor anything was handed over to her.
The said witness was reexamined by the Ld. Addl. PP for the State wherein she has deposed that inadvertently in her cross examination she had stated that IO obtained her signatures on her statement under Section 161 Cr.P.C. whereas she signed the seizure memo of the exhibits given after the medical examination of the prosecutrix 'S'.
PW13 HC Rajesh has deposed that on 29.4.2008 he was posted at Police Station Nangloi as Constable and on that day he collected seven sealed parcels along with three sample seal for depositing at FSL Rohini. He has testified that accordingly he went to FSL Rohini vide RC No. 106/21/08 but the exhibits could not be deposited on that day due to which reason he returned back and handed over the exhibits to the MHCM on the next day that is 30.4.2008. The St. Vs. Jaibir @ Bintoo & Anr, FIR No. 253/08, PS Nangloi Page No. 26 of 44 witness has proved that he again collected the aforesaid exhibits from MHCM and deposited the same to the FSL Rohini after which he deposited the receipt with the MHCM. He has further proved that as long as the exhibits remained in his possession, the same were not tampered with and remained intact.
In his crossexamination the witness has deposed that he had stated to the Investigating Officer in his statement that he took seven sealed parcels along with three sample seals from Malkhana but when confronted with his statement Ex.PW13/DA the said fact was not found so recorded. He has admitted that in his statement Ex.PW13/DA the seal impression have not been mentioned. He has denied the suggestion that he never deposited any pullanda at FSL Rohini.
PW14 Ct. Jagbir Singh has deposed that on 9.4.2008 he was posted at Police Post Nihar Vihar of Police Station Nangloi and on that day he was working as Roznamcha Munshi from 8:00 PM to 8:00 AM. According to him, at about 11:00 PM wireless operator informed that one boy Bintoo took the daughter of the complainant brother at 4:00 PM and did not return back, at H1/B, Shivram Park, Galiu no. 8, Pir Baba Road. He has proved that he recorded the said information vide DD No. 44 which is Ex.PW14/A and that the said DD was furnished to ASI Mahender Singh be telephone. He has not been crossexamined by the Ld. Defence Counsels.
St. Vs. Jaibir @ Bintoo & Anr, FIR No. 253/08, PS Nangloi Page No. 27 of 44 PW15 Ct. Saudhan Singh has deposed that on 9.4.2008 he was posted at Police Post Nihal Vihar and on that day on receiving information vide DD No. 44, he along with ASI Mahender reached at H1/B, Shivram Park, Nangloi where one person namely Rohtash met them who told that his daughter had gone with some unknown person after which the Investigating Officer kept the DD No. 44 pending. According to the witness, on 10.4.2009 the prosecutrix, Rohtash and Ashish Sharma came at Police Post when ASI Mahender recorded the statement of the prosecutrix and prepared a rukka which he handed over to him for registration of the FIR. He has deposed that he went to Police Station and after getting the FIR registered he returned back to Police Post Nihar Vihar and handed over a copy of FIR and rukka to ASI Mahender. He has correctly identified the accused Ashish in the Court.
In his crossexamination the witness has admitted that in his presence only the rukka was prepared in his presence. He has denied the suggestion that in his presence the Investigating Officer did not record the statement of any witness in this case and states that the statement of prosecutrix was recorded by ASI Mahender. According to him, the distance between Police Post Nihal Vihar and Police Station Nangloi might be about three to four kilometer and he remained in the Police Station for about half an hour. He has deposed that he was on government motorcycle on which he was on patrolling since he was on St. Vs. Jaibir @ Bintoo & Anr, FIR No. 253/08, PS Nangloi Page No. 28 of 44 emergency duty. He has denied the suggestion that his statement was not recorded on 10.4.2008 because he did not join investigations with ASI Mahender Singh.
PW16 Sh. Anil Kumar, ACJ NorthEast (the then MM) has deposed that on 11.4.2008 an application Ex.PW16/A was moved by the Investigating Officer for recording the statement of prosecutrix under Section 164 Cr.P.C. before him as he was the Duty MM and he fixed the same for 12.4.2008. According to him, on 12.4.2008 IO SI Savita produced the prosecutrix before him and identified her after which the proceedings under Section 164 Cr.P.C. was conducted in his Chamber. The witness has further deposed that he made preliminary inquiry and after being satisfied he recorded the statement of the prosecutrix which is Ex.PW1/C. He has proved having issued a certificate of proceedings which is Ex.PW16/B and having directed that the statement be sent to the concerned court in a sealed envelope which proceedings are Ex.PW16/C. According to the witness, an application was moved by the Investigating Officer for sending the prosecutrix to Nari Niketan and he passed the orders to handover the custody of the prosecutrix to her father vide Ex.PW16/D and on application of the Investigating Officer copy of the proceedings were supplied vide order Ex.PW16/E. He has not been crossexamined by the Ld. Defence Counsels.
St. Vs. Jaibir @ Bintoo & Anr, FIR No. 253/08, PS Nangloi Page No. 29 of 44 PW20 ASI Mahender Singh has deposed that on 9.4.2008 he was posted at Police Post Nihal Vihar and on that day he received DD No. 44 in respect of kidnapping of a girl by a boy Bintoo, certified copy of which DD is Ex.PW14/A on which he along with Ct. Shodan went to House No. H1/B, Shivram Park where one Rohtash met them who told him that his daughter 'S' was taken by Bintoo or Ashish. According to the witness, Rohtash further informed them that he could not tell the exact facts at that time and when he is confirmed he would tell the facts on which he (witness) kept the DD No. 44 pending and returned back to Police Post. The witness has further deposed that on 10.4.2008 when he was present at Police Post when the prosecutrix 'S' and a boy Ashish came to the Police Post along with the parents of the girl on which he made inquiries and recorded her statement vide Ex.PW1/A. He has proved having prepared the rukka which is Ex.PW20/A and handed over to Ct. Shodan Singh for registration of FIR after which Ct. Shodan left Police Police and went to Police Station Nangloi and the investigation of the case was handed over to SI Sarita. The witness has testified that as per instructions of the SHO since it was night hours, he along with prosecutrix 'S', her mother Saroj and Ct. Shodan went in search of accused Jaibir @ Bintoo to village Ranikhera but he could not be traced. He has deposed that while they were returning back and reached and Nangloi Chowk at the instance of the prosecutrix and her mother Saroj St. Vs. Jaibir @ Bintoo & Anr, FIR No. 253/08, PS Nangloi Page No. 30 of 44 the accused Jaibir was apprehended and brought to the Police Post and his medical examination was got conducted. He has also deposed that medical examination of the prosecutrix was also got conducted and at the time of her medical examination SI Savita also reached the hospital to whom he handed over the custody of accused Jaibir and the prosecutrix 'S'. He has correctly identified the accused Jaibir @ Bitoo @ Bintoo in the Court.
In his crossexamination the witness has deposed that he made inquiries from the victim for about half an hour before recording her statement Ex.PW20/A and whatever was disclosed to him, he had recorded. According to him, she did not express that she is under threat due to which reason she is forgetting any material fact of the case. He has admitted that in the said statement the victim did not allege rape by accused Ashish Sharma and that in his presence no disclosure statement, arrest memo or personal search memo of the accused were prepared. The witness has also admitted that in his presence no injury was conducted by SI Savita or any other police official from accused Ashish. He states that he made inquiries from accused Ashish but he did not reduce the same into writing. He has admitted that prior to recording of statement of victim her parents were also present in the Police Police. According to him, the victim came to the Police Post on 10.4.2008 at about 8:00/ 8:30 PM but he is unable to tell the exact time when Si St. Vs. Jaibir @ Bintoo & Anr, FIR No. 253/08, PS Nangloi Page No. 31 of 44 Savita took over the investigations of this case and states that it was one and a half hour after sending the rukka. He has denied the suggestion that he had not conducted fair investigations or that the victim did not give any statement.
PW21 SI Savita is the Investigating Officer who has deposed that on 10.4.2008 he was posted in the Rape Cell, Punjabi Bagh Circle when investigation of this case was marked to her. According to the witness, the Duty Officer informed her about the registration of FIR and Ct. Shodan handed over copy of the FIR and rukka to her pursuant to which she along with Ct. Shri Bhagwan went to Police Post Nihar Vihar where prosecutrix 'S' her mother were present along with Ashish. She has proved that she made inquiries from the prosecutrix and recorded her statement under Section 161 Cr.P.C. where she explained the role of Ashish and also told that due to fear of Ashish she did not tell the role of Ashish in her first statement after which she made inquiries from Ashish and arrested him vide memo Ex.PW2/C and his personal search was conducted vide memo Ex.PW11/B. The witness has testified that the accused Ashish made a disclosure statement vide Ex.PW11/D after which the accused led them to the place of incident where he committed rape vide pointing out memo Ex.PW11/B. She has further deposed that she tried to search the coaccused Jaibir @ Bintoo but he was not traceable in the hight hours and in day hours she came to Police Post. St. Vs. Jaibir @ Bintoo & Anr, FIR No. 253/08, PS Nangloi Page No. 32 of 44 Thereafter she along with Ct. Shri Bhagwan, Ct. John Patric, prosecutrix and her mother reached at Nangloi Chowk where accused Jaibir was apprehended who was arrested vide memo Ex.PW2/B; his personal search was conducted vide memo Ex.PW10/B and his disclosure statement was recorded vide Ex.PW11/C after which the accused pointed out the place of occurrence vide Ex.PW11/F. She has proved that she directed other police officials to got conducted the medical examination of the prosecutrix, accused Ashish and Jaibir. The witness has further deposed that as per the directions of the SHO ASI Mahender also went to the hospital for supervision and during medical examination she also reached in the hospital. The Investigating Officer has testified that after the medical examination of accused Ashish, the doctor handed over two sealed parcels and one sample seal which were seized vide memo Ex.PW11/A. She has proved that after examining the accused Jaibir, the doctor handed over to her one sealed parcel and one sample seal which were seized vide memo Ex.PW10/A. The witness has further deposed that both the accused were thereafter produced before the Court and sent in judicial custody after which he moved an application before the Court for recording the statement of prosecutrix under Section 164 Cr.P.C. which application is Ex.PW16/A which application was fixed for next day that i.e. 12.4.2008 and the prosecutrix was sent to Nari Niketan. She has proved having deposited the case property with MHCM and St. Vs. Jaibir @ Bintoo & Anr, FIR No. 253/08, PS Nangloi Page No. 33 of 44 having recorded the statement of witnesses. According to her, on 12.4.2008 she again went to the Court and identified the prosecutrix before the Ld. MM vide her endorsement Ex.PW21/A after which she moved an application before the Court regarding the sending prosecutrix to Nari Niketan which application is Ex.PW21/B. She has testified that after recording her statement she also moved an application for supply of copy of statement which application is Ex.PW16/C. The witness has also deposed that on 14.4.2008 mother of the prosecutrix told that on 22.12.2007 when the incident took place the prosecutrix 'S' was wearing one salwar of Badami colour which was produced by the prosecutrix after which it was seized vide memo Ex.PW1/B and deposited the same with the MHCM. PW21 has further testified that on 15.4.2008 she obtained one day police custody remand of Jaibir since in his disclosure statement the accused disclosed that the vehicle used in the crime belonged to his friend Sudhir resident of Loha Mazra, Haryana. Thereafter on 16.4.2008 she along with ASI Amar Pal and accused Jaibir went to village Loha Mazra where they made inquiries about Sudhir but the local persons told that no person namely Sudhir having the Santro car was residing there. She has deposed that the accused Jaibir was interrogated who made another disclosure statement which is Ex.PW21/C after which the accused was sent to judicial custody. According to her, on 1.5.2008 Saroj Bala the mother of the prosecutrix St. Vs. Jaibir @ Bintoo & Anr, FIR No. 253/08, PS Nangloi Page No. 34 of 44 handed over the date of birth certificate of the prosecutrix 'S' which was seized vide memo Ex.PW2/D photocopy of which is Ex.PW2/E. She has testified that she also went to GRM Sr. Secondary School and collected a certificate regarding the date of birth of the prosecutrix which is Ex.PW1/X. The witness has further deposed that on 30.4.2008 she sent the exhibits of this case to FSL through Ct. Rajesh and after completion of investigations, she prepared the challan and filed the same before the Court through the SHO. She has also deposed that during the trial as per directions of the Court the ossification test of the prosecutrix was got conducted. She has correctly identified both the accused in the court as well as the case property that is one Badami colour Salwar which is Ex.P1.
In her crossexamination the witness has deposed that the victim met her at Nihal Vihar Police Post on 10.4.2008 at about 12:00 midnight. She has admitted that the name of accused Ashish regarding allegations is not mentioned in Ex.PW20/A and states that victim mentioned the name of accused Ashish when she recorded her statement under Section 161 Cr.P.C. She does not remember the time of arrest of accused Ashish on 11.4.2008 and arrest memo was signed by Ct. John Patric, Shri Bhagwan and victim. She has denied the suggestion that the victim disclosed her age as 17 ½ years but she deliberately mentioned the same as 14 years. She has further denied the suggestion that she had St. Vs. Jaibir @ Bintoo & Anr, FIR No. 253/08, PS Nangloi Page No. 35 of 44 conducted the entire investigation/ proceeding at Nihar Vihar Police Post or that she had not conducted fair investigations in this case.
The witness has also deposed that the accused Jaibir @ Bintoo was arrested on 11.4.2008 but she does not remember the exact time. According to her, except the statement of victim 'S' she did not record statement of any other witness regarding the incident dated 22.12.2007. She has testified that she recorded the statement of Sarpanch of village Loha Majra but has admitted that no such statement of Sarpanch is filed along with the charge sheet. The witness has also admitted that no car was recovered. She has denied the suggestion that she obtained the signatures of the accused on blank papers or that no car was involved in the incident or that the accused did not give any disclosure statement.
Statement of accused/ defence evidence:
After completion of prosecution evidence, statement of both the accused were recorded under Section 313 Code of Criminal Procedure wherein all the incriminating evidence was put to him which they have denied. The accused Jaibir has stated that he has been falsely implicated by the police as he was having business partnership with father of the prosecutrix. According to him, he never committed any rape upon the prosecutrix nor he made any disclosure statement to the police.
St. Vs. Jaibir @ Bintoo & Anr, FIR No. 253/08, PS Nangloi Page No. 36 of 44 Similarly the accused Ashish has stated that he has been falsely implicated in this case and he never committed rape upon the prosecutrix 'S' due to which reason she has not levelled any allegations of rape in her complaint. According to her, even during the course of her recording of evidence she has admitted that she had not raped her nor she went with him out of Delhi and has further stated that earlier she has deposed under the pressure of Investigating Officer.
However, both the accused preferred not to lead any evidence in their defence.
FINDINGS:
I have heard the arguments advanced before me by the Ld. Addl. PP for the State and the Ld. Defence Counsel. I have also gone through the evidence on record. My findings are as under: Identity of the accused stands established:
In so far as the identity of the accused Jaibir @ Bintoo and Anish Sharma is concerned, it is evident from the record that the prosecutrix has correctly identified both the accused in the Court. Even otherwise the accused do not dispute their identity as they were previously known to the prosecutrix.
Age of the prosecutrix:
The case of the prosecution is that the prosecutrix was a minor below the age of 16 years at the time of the incident. In this St. Vs. Jaibir @ Bintoo & Anr, FIR No. 253/08, PS Nangloi Page No. 37 of 44 regard the copy of the birth certificate is Ex.PW1/D showing that her date of birth is 20.3.1995 i.e. on the date of incident she was around 16 years of age. Dr. Amitabh Bhasin (PW17) HOD, Radiology, Sanjay Gandhi Memorial Hospital has opined that the age of the prosecutrix 'S' as on 24.10.2008 as per the Xray was more than 15 years but less than 17 years. However, Dr. Divpreet Sahni (PW18) Dental Surgeon Sanjay Gandhi Memorial Hospital has deposed that on the basis of the Xray of the mouth of the prosecutrix he had opined the age of the prosecutrix between 16 to 17 years whereas PW19 Dr. V.K. Jha, Medical officer, BJRM Hospital has proved that the age of the prosecutrix 'S' on 24.10.2008 was above 17 years and less than 18 years. In view of the aforesaid, the benefit of the same has to go to the accused and I hold that at the time of the incident the prosecutrix was a minor less than 18 years of age but it has not been proved beyond reasonable doubt that she was 14 years old.
Medical and Forensic Evidence:
The MLC of the prosecutrix has been duly proved by Dr. P.C. Prabhakar (PW4) who has deposed that on 11.4.2008 he had examined the prosecutrix 'S' and on examination no external injuries were found over her body. He has duly proved the MLC of the prosecutrix which is Ex.PW4/A. Further, Dr. Veena Gupta (PW5) has duly proved that Dr. Roopinder Dongra had examined the prosecutrix 'S' St. Vs. Jaibir @ Bintoo & Anr, FIR No. 253/08, PS Nangloi Page No. 38 of 44 vide Ex.PW5/A according to which the patient had attained menarche one year back (from the date of her examination) and local examination revealed that hymen was torn and admitting one finger. She has proved that on per vaginal examination, uterus was anteverted, normal size, mobile and bilateral fornices were free.
Further, Dr. Dhruv Sharma (PW8) Senior Scientific Officer has duly proved his report which is Ex.PW8/A according to which semen stains could not be detected on the salwar and underwear of the prosecutrix. Therefore, it is evident that the medical and forensic evidence do not in any manner assist the prosecution. Allegations against the accused:
The case of the prosecution is that the accused Jaibir @ Bintoo whom the prosecutrix used to address as Chacha, was working as a Conductor with the father of the prosecutrix, had met her on 21.12.2007 morning at about 7:00 AM at Shani Bazar Road and believing the credentials of the accused Jaibir she started walking with him and the moment she reached near a parked carm she was pulled inside by the accused and the words 'DP' were written on the right side front mirror of the car. Thereafter the car was taken at some place where the accused stopped the car and pressed her neck and committed rape upon her and after doing the act he drove back towards her house and dropped her in the gali where her house was situated and also telephonically threatened St. Vs. Jaibir @ Bintoo & Anr, FIR No. 253/08, PS Nangloi Page No. 39 of 44 her not to disclose the incident to anybody or else he would kill his brother and father. Later on when she came into contact with the accused Ashish through her friend Mamta, she disclosed the incident of rape by Jaiveer @ Bintoo to Ashish on which Ashish has told that he had good connection and he would get the accused Jaiveer @ Bintoo killed but the accused Ashish narrated these facts to her Chacha Sonu and later on started blackmailing her since her uncle/ Chacha knew about the incident of rape hence there was a possibility that her Chacha Sonu would kill her. Thereafter the accused Ashish promised that he would marry her and asked her to accompany him (Ashish) and thereafter Ashish took her to the house of her Chachi but she was not present in the house and after a while Ashish committed rape upon her in the said house. After the incident on the pretext of marriage the accused took her to Aligarh to the house of his mama but since the mama of accused Ashish had already received a call from the father of Ashish he was advised to brought the prosecutrix back to Delhi on which Ashish took her to Police Station Nihar Vihar where she was handed over to the police.
It is evident that the initially the prosecutrix has supported the case of the prosecution but later when she appeared in the Court on 6.4.2009 she turned hostile and in her crossexamination stated that accused Jaiveer and Ashish did not commit rape upon her and has stated that she had given the statement on the instructions of the Investigating St. Vs. Jaibir @ Bintoo & Anr, FIR No. 253/08, PS Nangloi Page No. 40 of 44 Officer. However, in her first statement made to the Ld. Metropolitan Magistrate which is Ex.PW16/C the prosecutrix has duly supported the case of the prosecution and the allegations regarding Jaiveer having committed rape upon her but in so far as her testimony before this Court is concerned, she has not supported the same and stated that earlier she had deposed on the instructions of the Investigating Officer. In so far as the incident regarding the accused Jaibir @ Binto having taken her in a car and of committed rape is concerned, it is evident that the prosecutrix did not disclose about this fact to anybody not even to her parents. It is also evident that when the prosecutrix had appeared before the Court on 6.4.2009 she admitted that neither Jaibir brought a car nor took her inside the said car nor she committed any incident of rape upon her. She has also denied that Jaibir @ Binto ever committed rape upon her. Here, I may observe that the incident of 20.12.2007 had been highlighted by the prosecutrix when she later on eloped with Ashish in April 2008. Neither the vehicle in which the prosecutrix was allegedly taken away was recovered or produced in the Court nor identified nor the place where the prosecutrix was taken has been proved. In so far as the allegations against the accused Ashish are concerned, it is evident from the testimony of the prosecutrix that she had eloped with Ashish and according to the prosecutrix herself it was Ashish who later on brought her back to Delhi and took to Police Station Nihal Vihar. St. Vs. Jaibir @ Bintoo & Anr, FIR No. 253/08, PS Nangloi Page No. 41 of 44 This being the background, there being no independent corroboration to the testimony of the prosecutrix, the benefit of the same is required to be given to the accused and I hold that the charges involved invoked by the prosecution have not been proved and substantiated beyond reasonable doubt.
FINAL FINDINGS:
In the case of Sharad Birdhichand Sarda Vs. State of Maharastra, AIR 1984 SC 1622, the Apex Court has laid down the tests which are prerequisites before conviction should be recorded, which are as under:
1. The circumstances from which the conclusion of guilt is to be drawn should be fully established.
The circumstances concerned ' must or should' and not 'may be' established;
2. The facts so established should be consistent only with the hypothesis of the guilt of the accused, that is to say, they should not be explainable on any other hypothesis except that the accused is guilty;
3. the circumstances should be of conclusive nature and tendency;
4. they should exclude every possible hypothesis except the one to be proved; and
5. There must be a chain of evidence so complete as not to leave any reasonable ground for the conclusion consistent with the innocence of the accused and must show that in all human probability the act must have been done by the accused.
St. Vs. Jaibir @ Bintoo & Anr, FIR No. 253/08, PS Nangloi Page No. 42 of 44 Applying the settled principles of law to the facts of the present case, it is evident that the identity of both the accused Jaibir @ Bintoo and Ashish stand established. The accused Jaibir @ Bintoo was working as Conductor with the father of the prosecutrix and the accused Ashish was previously known to the prosecutrix through her friend Mamta. It also stands established from the record that at the time of the alleged incident the prosecutrix was below 18 years but above 17 years of age. However, it does not stands established that on 22.12.2007 the accused Jaibir @ Bintoo called the prosecutrix 'S' at Shani Bazar Road and put her in a car where he committed rape upon her at some place. It has also not been established that the accused Ashish also committed rape upon her without her consent. Rather, it stands established that the prosecutrix had eloped with the accused Ashish who himself brought her back to Delhi.
I hereby hold that the circumstances reflected from the material on record do not stand conclusively established. The facts are also are not consistent only with the hypothesis of the guilt of the accused. The chain of evidence is not so much complete so as not to leave any reasonable ground for the conclusion consistent with the innocence of the accused persons. The materials brought on record by the prosecution are insufficient to hold that each of the accused was guilty beyond reasonable doubt. Further, each circumstance has not been proved beyond reasonable doubt. The prosecution has also not St. Vs. Jaibir @ Bintoo & Anr, FIR No. 253/08, PS Nangloi Page No. 43 of 44 established a conclusive link connecting each individual circumstance with the other, and the accused namely Jaibir @ Bintoo and Ashish. Crucially, the materials and evident on the record do not bridge the gap between "may be true" and must be true" so essential for a court to cross, while finding the guilty of an accused, particularly in cases based on circumstances evidence. Therefore, I hereby hold that the prosecution has not been able to prove and substantiate the allegations against the accused Jaibir @ Bintoo and Ashish, beyond reasonable doubt and hence, benefit of doubt is being given to them who are acquitted of the charges under Section 363/366/376 (2) (f) Indian Penal Code.
Both the accused be released if not required in any other case. File be consigned to Record Room.
Announced in the open court (Dr. KAMINI LAU) Dated: 20.10.2011 ASJII(NW)/ ROHINI St. Vs. Jaibir @ Bintoo & Anr, FIR No. 253/08, PS Nangloi Page No. 44 of 44