Delhi District Court
State vs . 1. Sukhdev on 25 January, 2014
1
FIR No. 174/12
PS - Adarsh Nagar
IN THE COURT OF SH. MAHESH CHANDER GUPTA :
ADDITIONAL SESSIONS JUDGE : SPECIAL FAST TRACK
COURT : NORTHWEST DISTRICT : ROHINI : DELHI
SESSIONS CASE NO. : 155/13
Unique ID No. : 02404R0294172012
State Vs. 1. Sukhdev
S/o Vasudev
R/o H. No. 1/6, H - Block,
Jahangir Puri,
Delhi.
2. Geeta
W/o Vasudev
R/o H. No. 1/6, H - Block,
Jahangir Puri,
Delhi.
FIR No. : 174/12
Police Station : Adarsh Nagar
Under Sections : 366/376/342/328/34 IPC
Date of committal to session Court : 31/10/2012
Date on which judgment reserved : 15/01/2014
Date on which judgment announced : 25/01/2014
1 of 79
2
FIR No. 174/12
PS - Adarsh Nagar
J U D G M E N T
1. Briefly stated the case of the prosecution as unfolded by the report under section 173 Cr.P.C. is as under : That prosecutrix (name withheld being a case u/s 376 IPC) W/o Jitender R/o H. No. 164, Rattan Wali Gali, Village Azadpur, Delhi, permanent R/o Village Karmasi, Police Station Junabi, Distt. Badayun, U.P., came to the Police Station Adarsh Nagar and made the statement to W/SI Upkar Kaur which is to the effect that, she lives at the above address with her family on rent for the last 1½ years. She is doing the work of packing at Gali No. 8, Majlis Park for the last 1½ years at the work place of Rajesh (Mai Majlis Park Mei Gali No. 8 Mei Rajesh Ke Yahan 1½ Saal Se Packing Ka Kaam Karti Hoon). One boy namely Sukhdev was also working there, who slowly slowly started talking with her and they used to take the food together. He told her that his is the step mother who does not give him the food after proper cooking and for this a few times she used to take food for him in her tiffin and whenever he brought the food then he used to mix the same in her food and when she used to eat food she used to have some strange feeling. He used to 2 of 79 3 FIR No. 174/12 PS - Adarsh Nagar say to her, let she marry with him on which she said that she is already married and she will not marry with him (Wahin Par Ek Ladka Sukhdev Bhi Kaam Karta Tha. Jo Sukhdev Dhire Dhire Mere Se Baat Karne Laga Aur Hum Khana Bhi Ek Saath Khate The Usne Mere Se Bataya Ki Meri Maa Sautali Hai Jo Mujhe Achi Tarah Se Khana Bana Kar Nahi Deti To Mai Kai Baar Uske Liye Apne Tiffin Mei Khana Lekar Jati Thi, Aur Jab Weh Kabhi Khana Lekar Aaya To Mere Khane Mei Mila Deta To Jab Mai Khana Khati Thi To Mujhe Ajeeb Sa Mehsoos Hota Tha. Weh Ladka Mujhe Kehta Tha Ki Tum Mere Se Shadi Kar Lo To Maine Kaha Ki Mai Shadi Shuda Hoon Aur Aapse Shadi Nahi Karungi). On 10/07/2012 at about 9:30 a.m. she was leaving for her duties from Majlis Park then on the way mother of Sukhdev met to whom she (Prosecutrix) was knowing previously because she used to visit his son (Sukhdev), who (mother of Sukhdev) said to her, her son will die, she to go with her (mera beta mar jayga tum mere sath chalo) then she with her went to their house, 1/6 HBlock, Jahangir Puri, Delhi, she (mother of Sukhdev) forcibly made her to eat rice, she (Prosecutrix) does not know as to what happened to her after eating the same and as to what they used to say, she was doing accordingly (Date 10/07/2012 Ki Baat Hai Mai Apne 3 of 79 4 FIR No. 174/12 PS - Adarsh Nagar Ghar Se Duty Ke Liye 9:30 a.m. Par Majlis Park Ja Rahi Thi. To Raste Mei Sukhdev Ki Maa Mili Jisko Mai Pehle Se Jaanti Hoon. Kyonki Weh Apne Ladke Ke Pass Aati Jaati Thi. Jisne Mujhe Kaha Ki Mera Beta Mar Jaega Tum Mere Saath Chalo To Mai Uske Saath Unke Ghar 1/6, H
- Block, Jahangir Puri, Delhi Chali Gai Usne Mere Ko Jabardasti Chawal Khilaye Jiske Khane Se Mujhe Pata Nahi Kya Ho Gya. Jaise We Kehte The Vaise Hi Mai Karti Thi). Then from Adarsh Nagar Metro Station Sukhdev brought her to New Delhi Railway Station and thereafter by Train they took her to New Farakka and when the station came then she came to know about the New Farakka Station. Thereafter, they through Rickshaw took her to the village, name of which she does not know, there she was kept in a room and Sukhdev forcibly kept on committing galat kaam with her 5/6 days, thereafter, they all on 17/07/2012 by 10:00 p.m. night train returned back to Delhi and she (prosecutrix) alighted from the running train at New Delhi Railway Station and thereafter, through Metro reached back to her house at Azadpur. On 18/07/2012 she reached at her house at Azadpur but due to being down with fever she on 20/07/2012 came to the Police Station (Fir Adarsh Nagar Metro Station Se Ladka Sukhdev Mujhe Baitha Kar New 4 of 79 5 FIR No. 174/12 PS - Adarsh Nagar Delhi Railway Station Le Aaya Wahan Par Mujhe Train Mei Bitha Kar New Farakka Jagah Par Le Gaya Jab Station Aaya To Mujhe New Farakka Station Ka Pata Laga. Uske Baad Mujhe Rickshaw Mei Bitha Kar Gaon Le Gaya Jiska Naam Mujhe Malum Nahi Wahan Par Ek Kamre Mei Rakha Gaya Wa Sukhdev Ne Mere Saath 56 Din Tak Jabardsti Hi Mere Saath Galat Kaam Karta Raha Fir Hum Sab 17/07/2012 Ko Raat 10:00 Baje Ki Train Mei Baith Kar Vapis Delhi Aa Gaye Mai Chalti Train Se New Delhi Railway Station Par Utar Gai Wa Uske Baad Mai Metro Mei Baith Kar Apne Ghar Azadpur Pahunchi Mai 18/07/2012 Ko Apne ghar Azadpur Pahunchi Thi Lekin Mere Ko Bukhar Aane Ke Karan Mai 20/07/2012 Ko Thana Hazir Aai). Her medical examination was got conducted vide MLC No. 44342 at BJRM Hospital Jahangir Puri, Delhi and after the medical examination she has came back to the Police Station. Legal action be taken against Sukhdev S/o Vasudev R/o 1/6 HBlock, Jahangir Puri. The statement has been heard and understood and is correct. From the statement of the prosecutrix and from the inspection of her MLC, on finding that offences u/s 366/376 IPC appeared to have been committed, the case was got registered and the investigation was proceeded with by W/SI Upkar 5 of 79 6 FIR No. 174/12 PS - Adarsh Nagar Kaur. The sealed exhibits of the prosecutrix were taken into Police possession and were deposited in the Malkhana. On 21/07/2012 accused Sukhdev was arrested and his medical examination was got conducted vide MLC No. 44241 and the sealed exhibits handed over by the doctor were taken into Police possession. Statement of the prosecutrix was got recorded u/s 164 Cr.P.C. The age relating documents of the accused were obtained and on 22/09/2012 the medical examination of the accused was again got conducted and the opinion of S.R. Surgery was obtained. On 02/10/2012, Geeta, mother of accused Sukhdev was arrested. The sealed exhibits were sent to the FSL.
Upon completion of the necessary investigation, challan for the offences U/s 366/376/342/328/34 IPC was prepared against accused Sukhdev and accused Geeta and was sent to the court for trial.
2. Since the offences under sections 366/376/328 IPC are exclusively triable by the Court of Session therefore, after compliance of the provisions of section 207 Cr.P.C. the case was committed to the Court of Session under section 209 Cr.P.C.
6 of 79 7 FIR No. 174/12 PS - Adarsh Nagar
3. Upon committal of the case to the Court of session and after hearing on charge, prima facie a case u/s 328, 342 r/w 366, 376 IPC was made out against the accused Sukhdev and Geeta. The charge was framed accordingly, which was read over and explained to the accused to which they pleaded not guilty and claimed trial.
4. In support of its case prosecution has produced and examined 14 witnesses. PW1 Dr. Gagan, Junior Resident, BJRM Hospital, Delhi, PW2 HC Kalyan Singh, PW3 HC Rakesh Kumar, PW4 Constable Ved Prakash, PW5 W/Constable Pooja, PW6 W/Constable Rekha Kumari, PW7 Dr. Latika, S.R. Obs. & Gynae., BJRM Hospital, Delhi, PW8 SI Sunny Kumar, PW9 W/Constable Kavita, PW10 Constable Ramesh Tewari, PW11 Constable Vikram Singh, PW12 Dr. Dhruw Sharma, Asstt. Director Biology, FSL, Rohini, Delhi, PW13 - Prosecutrix and PW14 SI Upkar Kaur.
5. In brief the witnessography of the prosecution witnesses is as under : PW1 Dr. Gagan, Junior Resident, BJRM Hospital, Delhi 7 of 79 8 FIR No. 174/12 PS - Adarsh Nagar who deposed that on 20/07/2012 one patient/prosecutrix (name withheld) W/o Jitender, Age 34 years female was brought to Hospital for medical examination with the alleged history of sexual assault from 11/07/2012 to 17/07/2012. On examination no fresh external injury seen and thereafter the patient was referred to S.R. Gynae. for further examination. The MLC is Ex. PW1/A, bearing his signature at point 'A'.
PW2 HC Kalyan Singh is the Duty Officer who deposed that on 20/07/2012, he was posted as Duty Officer in PS Adarsh Nagar and was on duty from 4:00 p.m. to 12:00 midnight. On that day, at about 10:55 p.m., he received a rukka from SI Upkar. On the basis of the same and on his instructions, the present FIR No. 174/12, u/s 366/376 IPC was registered. He has brought the original FIR Register. The copy of the FIR is Ex. PW2/A which bears his signature at point 'A' (Original FIR seen and returned). He made his endorsement on rukka and the same is Ex. PW2/B which bears his signature at point 'A'. After registration of FIR he handed over copy of FIR and original rukka to Constable Satish for handing over to SI Upkar as per directions of SHO.
8 of 79 9 FIR No. 174/12 PS - Adarsh Nagar PW3 HC Rakesh Kumar is the MHC(M) who deposed that on 20/07/2012, he was posted as MHC(M) in PS - Adarsh Nagar. On that day, SI Upkar has deposited one sealed parcel in the Malkhana. He made entry at Serial No. 3777/12 of Register No. 19. On 21/07/2012, W/SI Upkar deposited two sealed pullindas in the Malkhana and he made entry at Serial No. 3778/12 of Register No. 19. On 22/09/2012, W/SI Upkar had deposited two sealed pullindas alongwith sample seal in the Malkhana and he made entry at Serial No. 4054 of Register No. 19. On 01/08/2012, on the instructions of IO two sealed pullindas alongwith two sample seals were handed over to Constable Ved Prakash for depositing it in FSL Rohini vide RC No. 75/21/12. After depositing the pullindas in FSL, he deposited the acknowledgment receipt of the pullinda in FSL with him (PW3). He has brought the original Register No. 19 and 21. The copy of the relevant entries of Register No. 19 are collectively Ex. PW3/A, the copy of the relevant entry of Register No. 21 is Ex. PW3/B, copy of the acknowledgment receipt is Ex. PW3/C (OSR). The sealed pullindas were remained intact during his custody.
PW4 Constable Ved Prakash who deposed that on 9 of 79 10 FIR No. 174/12 PS - Adarsh Nagar 01/08/2012 he was posted as Constable in PS Adarsh Nagar. On that day, on the instructions of IO, he took two sealed pullindas alongwith two sample seals alongwith FSL Form for depositing in FSL Rohini vide RC No. 75/21/12. He deposited the same in FSL Rohini and after depositing the pullindas in FSL, he deposited the acknowledgment receipt of the pullinda of FSL with MHC(M). The sealed pullindas were remained intact during his custody.
PW5 W/Constable Pooja who deposed that on 20/07/2012, he was posted as Constable in PS Adarsh Nagar. On that day, he alongwith SI Upkar took prosecutrix (name withheld) in BJRM Hospital for medical examination. She was medically examined there and after medical examination, Doctor handed over one sealed pullinda alongwith sample seal which was seized by IO vide memo Ex. PW5/A, bearing her signature at point 'A'.
PW6 W/Constable Rekha Kumari who deposed that on 02/10/2012 she was posted as Constable in PS Adarsh Nagar. On that day, she alongwith IO SI Upkar took accused Geeta, present in the 10 of 79 11 FIR No. 174/12 PS - Adarsh Nagar Court in BJRM Hospital for medical examination. She was medically examined and thereafter they came back to PS. IO recorded her (PW6) statement.
PW7 Dr. Latika, S.R. Obs. & Gynae., BJRM Hospital, Delhi who deposed that on 20/07/2012 one patient/prosecutrix (name withheld) W/o Jitendera age 34 years female was brought to Hospital for medical examination. The patient was initially examined by J.R. on duty and thereafter, she was referred to S.R. Gynae where she had examined the patient. Patient has given the history of sexual assault with kidnapping for seven days. Coital frequency three to four times per day without condom with physical assault as well. No history of bleeding per vagina/burning micturition or pain abdoman. On examination, general condition was fair, vital stable. On per abdomen examination - soft non tender. On per speculam examination cervix and vagina were healthy, no signs and symptoms of sexual assault. On local examination pubic hair normal, no debris (patient had taken bath). On Per vaginal examination uterus was anteverted normal size, bilateral fornices were free, sexual assault kit completed and given to the Constable. LMP was 11 of 79 12 FIR No. 174/12 PS - Adarsh Nagar 02/07/2012. Her findings on the MLC is Ex. PW7/A, bearing her signature at point 'A'.
PW8 SI Sunny Kumar who deposed that on 21/07/2012 he was posted as SI in PS Adarsh Nagar and was also working as Juvenile Welfare Officer in the PS. On that day, he was called by SI Upkar Kaur at House No. 6, H Block, Jahangir Puri where accused Sukhdev present in the Court was in the custody of IO as he was appeared to be juvenile, so custody of the accused was handed over to him. Thereafter, IO prepared the apprehension memo of accused Sukhdev which is Ex. PW8/A, bearing his (PW8) signature at point 'A', version of Sukhdev was recorded which is Ex. PW8/B, bearing his signature at point 'A'. Accused was medically examined at BJRM Hospital and after medical examination, Sukhdev was produced in Juvenile Justice Board and thereafter, Presiding Officer of JJ Board has ordered the accused Sukhdev to be produced before the concerned Court on 23/07/2012. IO recorded his (PW8) statement.
PW9 W/Constable Kavita who deposed that on 02/10/2012, 12 of 79 13 FIR No. 174/12 PS - Adarsh Nagar she was posted as Constable in PS Adarsh Nagar. On that day, she alongwith IO W/SI Upkar Kaur reached at House No. H1/6, Jahangir Puri where they met Vishwajeet, brother of Sukhdev and on inquiry he told that his mother had gone to Adarsh Nagar for cleaning the utensils and she will come after 1520 minutes. They waited there and after about 1520 minutes, accused Geeta, present in the Court came and she told that she is the mother of Sukhdev. She was interrogated and arrested vide arrest memo Ex. PW9/A, bearing her signature at point 'A', her personal search was also conducted vide memo Ex. PW9/B, bearing her signature at point 'A'. Thereafter, they came back to PS. IO recorded her statement.
PW10 Constable Ramesh Tewari who deposed that on 21/07/2012 he was posted as Constable in PS Adarsh Nagar. On that day he alongwith IO SI Upkar Kaur reached at H Block, Jahangir Puri in search of the accused where they came to know that accused Sukhdev is residing at House No. 1/6. Thereafter, they reached at the house of the accused and there one person had opened the door and he told that he is the father of accused Sukhdev, he further told that Sukhdev is present in 13 of 79 14 FIR No. 174/12 PS - Adarsh Nagar the house and thereafter, he produced the accused Sukhdev, present in the Court. He was interrogated and arrested. SI Sunny, JWO also reached there. Accused Sukhdev was arrested vide apprehension memo Ex. PW8/A, his personal search was conducted vide memo Ex. PW10/A, bearing his signature at point 'A'. He was taken to BJRM Hospital where he was medically examined and after medical examination, Doctor handed over the exhibits which were seized vide memo Ex. PW10/B, bearing his (PW10) signature at point 'A'. He was produced before JJB, Delhi Gate and he was ordered to be produced before the concerned Court on 23/07/2012. Thereafter, he was sent to Tihar Jail. IO recorded his statement.
PW11 Constable Vikram Singh who deposed that on 22/09/2012, he was posted as Constable in PS Adarsh Nagar. On that day, he alongwith SI Upkar Kaur IO, had reached Rohini Court in the Court of Ms. Vandana, MM. IO, moved an application for the medical examination of Sukhdev. Permission was granted by the Learned MM. Thereafter, they reached in Rohini Court Lockup and from there accused Sukhdev present in the Court was taken. They reached BJRM 14 of 79 15 FIR No. 174/12 PS - Adarsh Nagar Hospital, Jahangir Puri, where Sukhdev was medically examined and thereafter, he was produced before the Duty MM and he was sent to Rohini Court Lockup.
PW12 Dr. Dhruw Sharma, Asstt. Director Biology, FSL, Rohini, Delhi who deposed that on 01/08/2012 two sealed parcels were received in their office in connection with the present case and the same were marked to him for examination. He examined the exhibits biologically and he also conducted the DNA examination and thereafter, he prepared his report which is Ex. PW12/A, bearing his signature at point 'A'. After examination remnants of the exhibits were sealed with the seal of DS FSL Delhi.
PW13 Prosecutrix is the victim who deposed regarding the incident and proved her statement made to the Police Ex. PW13/A bearing her signature at point 'A' and also proved her statement recorded u/s 164 Cr.P.C. Ex. PX3 (Colly.), bearing her signature at point 'A'.
PW14 SI Upkar Kaur who deposed that on 20/07/2012, she 15 of 79 16 FIR No. 174/12 PS - Adarsh Nagar was posted as I.C., Sub Division Model Town, Rape Crisis Cell. On that day, after receiving the information from the SHO PS Adarsh Nagar, she reached at PS Adarsh Nagar, where she met complainant/prosecutrix (name withheld) W/o Jitender. She made inquiries from prosecutrix (name withheld) and she told about the facts of rape with her. Thereafter, she alongwith Lady Constable Pooja took her to BJRM Hospital for medical examination. She was medically examined and after medical examination, Doctor handed over the sealed pullinda containing the exhibits alongwith sample seal and same were seized vide memo already Ex. PW5/A. Thereafter, they came back to PS Adarsh Nagar. She recorded statement of prosecutrix (name withheld) which is already Ex. PW13/A and attested her signature at point 'A', bearing her signature at point 'B'. She prepared Tehrir Ex. PW14/A, bearing her signature at point 'A'. Thereafter, FIR was got registered by Duty Officer and Duty Officer handed over to her the copy of FIR and original rukka. The sealed pullindas were deposited in the Malkhana. She alongwith the complainant and Lady Constable reached at the spot near red light In gate, Azadpur Subzi Mandi and she prepared the site plan at the instance of the complainant Ex. PW14/B, bearing her 16 of 79 17 FIR No. 174/12 PS - Adarsh Nagar signature at point 'A' and they came back to Police Station. The complainant/prosecutrix (name withheld) was fearing for her husband so she was kept in the care of lady Constable. On next day i.e. 21/07/2012, she alongwith Constable Ramesh Tiwari reached at H Block, Jahangir Puri at the house of accused Sukhdev in his search. Accused Sukhdev was found present at his house, accused Sukhdev was interrogated and arrested vide apprehension memo Ex. PW8/A, bearing her signature at point 'B' as at that time he appeared to be Juvenile. Personal search of accused Sukhdev was conducted vide memo Ex. PW10/A, bearing her signature at point 'A'. Thereafter, accused Sukhdev was taken to BJRM Hospital where he was medically examined but his potency test could not be conducted as S.R. Surgery not found available. After medical examination, Doctor handed over the sealed pullinda containing exhibits and same were seized vide memo Ex. PW10/B, bearing her signature at point 'B'. Accused Sukhdev was produced before JJB, Delhi Gate and JJB after making inquiry from the accused, ordered to sent him in the Tihar Jail and it was also ordered that he be produced before the concerned Court on 23/07/2012. On 23/07/2012, accused Sukhdev was produced before the concerned Court and he was sent to JC. On 17 of 79 18 FIR No. 174/12 PS - Adarsh Nagar 01/08/2012, the exhibits were sent to FSL through Constable Ved Prakash and thereafter, he deposited the acknowledgment receipt with MHC(M). On 06/08/2012, prosecutrix (name withheld) was produced before the Court and she (PW14) moved an application Ex. PX2, bearing her signature at point 'A' for recording the statement of the prosecutrix u/s 164 Cr.P.C. Thereafter, her statement Ex. PX3 was got recorded and she obtained the copy of the statement vide her application Ex. PX4, bearing her signature at point 'A'. On 01/09/2012, she seized the birth certificate of accused Sukhdev vide seizure memo Ex. PW14/C, bearing her signature at point 'A'. On 02/10/2012, accused Geeta was apprehended from her house, interrogated and arrested vide memo Ex. PW9/A and her personal search was conducted vide memo Ex. PW9/B, both bearing her (PW14) signature at point 'B'. She was medically examined and thereafter she was produced in the Court and was sent to JC. On 22/09/2012, accused Sukhdev was again medically examined regarding his potency after taking permission from the Court and after medical examination, Doctor handed over the sealed pullinda containing exhibits and same was seized vide memo Ex. PW14/D, bearing her signature at point 'A'. Case property was deposited in the Malkhana.
18 of 79 19 FIR No. 174/12 PS - Adarsh Nagar She recorded the statement of witnesses and after completing the investigation Challan was prepared against the accused Sukhdev and Geeta and filed in the Court and she correctly identified accused Sukhdev and Geeta present in the Court.
The testimonies of the prosecution witnesses shall be dealt with in detail during the course of appreciation of evidence.
6. It is to be mentioned that on 26/11/2012 both the accused Sukhdev and Geeta made the statement before the Learned Predecessor Court wherein they admitted the proceedings u/s 164 Cr.P.C. conducted by Learned MM, the envelope containing the proceedings is Ex. PX1, the request of IO for conducting the proceedings is Ex. PX2, the proceedings u/s 164 Cr.P.C. is Ex. PX3 (colly.) and the request of IO for obtaining the copy of the proceedings is Ex. PX4. They also admitted their own medical examination vide MLCs Ex. PX5, Ex. PX6 and Ex. PX7 and stated that they have no objection if Learned MM and the concerned Doctors are not examined in the Court as witnesses.
19 of 79 20 FIR No. 174/12 PS - Adarsh Nagar
7. Statements of accused Sukhdev and Geeta were recorded u/s 313 Cr.P.C. wherein they pleaded innocence and false implication. Though they opted to lead defence evidence but did not lead any defence evidence.
8. Learned Counsel for accused submitted that the accused persons are innocent and have been falsely implicated in this case. Learned Counsel for accused further submitted that the prosecution story is totally false and baseless and the allegations made are after thought and without any supportive evidence. Learned Counsel for accused further submitted that the prosecution has failed to elaborate the reason for delay in registration of FIR, as it is self admission of the complainant that she returned back to Delhi on 18/07/2011 while the FIR was registered on 20/07/2011, so why she did not visit the Police Station on the same day, after having knowledge of commission of such serious offence. Learned Counsel for accused further submitted that the complainant is herself a married lady and as per her own statement, she was taken away on 10/07/2011 and was brought to Delhi on 18/07/2011, but it is very surprising & utter shocking that the husband of the 20 of 79 21 FIR No. 174/12 PS - Adarsh Nagar complainant had not given any Police complaint either regarding missing of his wife/complainant or regarding kidnapping by someone. Not only this, even after returning back to Delhi, the complainant has neither informed her husband about this incident nor any statement of her husband was recorded before the Police. This creates a serious doubt in the prosecution story. Learned Counsel for accused further submitted that the allegations of the complainant that she was having no sense, and she followed the terms of the accused persons after eating the rice is also not free from doubt, as one hand she says that she was having sense but on other hand, she is continuously telling in her statement that she was taken from Adarsh Nagar Metro Station to New Delhi, and thereafter she went by train and thereafter in village, which she has specifically named as New Farakka and thereafter she went by Rickshaw and thereafter she also having knowledge that she was detained in a room. So these self admissions of the complainants shows that she was having all senses & knowledge of what she was doing, but she has neither raised any alarm nor cried for help etc., therefore this story put by the complainant is not believable. Learned Counsel for accused further submitted that there is gross contradiction between the statement of the complainant as she 21 of 79 22 FIR No. 174/12 PS - Adarsh Nagar stated in statement u/s 161 Cr.P.C. that she was taken in the train by the accused Sukhdev but in her statement u/s 164 Cr.P.C., she states that she was taken in the train by the accused Geeta/mother of the accused Sukhdev. This creates a serious doubt in the prosecution story and it is apparent that the allegations of complainant are nothing but only a tactic to implicate the accused persons falsely in this case. Learned Counsel for accused further submitted that despite having mentioned about the rice in the FIR, the Police officials have neither taken any sample of those rice nor any such kind of eatable was recovered from the possession or their house by the Police officials, so the allegations regarding rice or anything eatable are totally false and baseless. Learned Counsel for accused further submitted that there is no kind of injury etc. received by the complainant. PW1 - Dr. Gagan stated in his examinationinchief that "on examination no fresh external injury seen". PW7 - Dr. Latika stated in her examinationinchief that "on per speculam examination, cervix and vagina were healthy, no signs and symptoms of sexual assault." Learned Counsel for accused further submitted that this finding shows that there was no sexual assault upon the complainant and the allegations of forcefully Sex and Rape are not 22 of 79 23 FIR No. 174/12 PS - Adarsh Nagar found and same are totally false. Learned Counsel for accused further submitted that PW8 - SI Sunny Kumar has stated that the accused Sukhdev was produced before the J. J. Board at about 3:30 p.m. while PW10 - Constable Ramesh Tiwari has stated that they reached before J. J. Board alongwith the accused Sukhdev at about 4:00 to 4:30 p.m. Learned Counsel for accused further submitted that the contradictions regarding the timing of reaching/appearing before the J. J. Board creates doubt that these witnesses have not arrested the accused and have given such statement only on the instance of the IO/SHO concerned. Learned Counsel for accused further submitted that the result of the FSL does not support the prosecution story and the allegations of the prosecutrix. Learned Counsel for accused further submitted that the complainant/prosecutrix has specifically admitted during her examinationinchief that the complainant used to bring a Tiffin and the accused Sukhdev used to mix/pour something intoxicated in that whenever she used to go for washing her hands and after eating that she used to feel giddy but she has never made any complaint regarding this to anybody. During the crossexamination, this witness stated that she used to work with the accused on the second floor of three storey building.
23 of 79 24 FIR No. 174/12 PS - Adarsh Nagar She further stated that nobody supervise their work and after the duty time was over, the same was informed by the father of Rajesh. Learned Counsel for accused further submitted that if the accused Sukhdev would have any such intention for Sexual Assault, then he was having sufficient opportunities to commit the same at the workplace even, and there was no need to take the complainant to village, i.e. so far from Delhi.
Learned Counsel for accused further submitted that during the crossexamination PW13 - prosecutrix admitted that the accused Sukhdev used to mix his food with the food of the prosecutrix from the first day and she felt giddy, but she herself admitted that she never complained about this to anybody or owner of the house, where they were working. She further admitted that she had not made complaint to anybody/anywhere when the accused Sukhdev asked her to marry. This witness further admitted that she told this fact to her husband but they did not make any Police complaint regarding this fact. This witness clearly admitted during the crossexamination that she regained her conscious but she did not raise alarm at New Farakka Railway Station as accused had threatened to kill her, she further admitted that this fact was 24 of 79 25 FIR No. 174/12 PS - Adarsh Nagar never told by her to the Police in her statement nowhere. Learned Counsel for accused further submitted that such statement of the prosecutrix is not reliable, as there is no supporting evidence to the allegations and the same is only result of intention of the prosecutrix to implicate the accused in some false case. Learned Counsel for accused further submitted that PW13 - prosecutrix was confronted on the statement that the fact of washing of hands before taking lunch is not mentioned to the Police. This witness was further confronted on another statement that she has stated to the Police in her statement that the accused Sukhdev has also given beatings to her. Learned Counsel for accused further submitted that in view of the above confrontations in the statement of the prosecutrix, it becomes clear that she is varying/changing her statement time to time and therefore such statement are not relied upon and not believable. Learned Counsel for accused further submitted that PW13 - prosecutrix stated in her statement u/s 161 Cr.P.C. that she was taken in the train by the accused Sukhdev from Metro Station to New Delhi and further to New Farakka. Whereas, in her statement u/s 164 Cr.P.C., she stated that she was taken in the train by the accused Smt. Geeta. During her crossexamination, she stated that 25 of 79 26 FIR No. 174/12 PS - Adarsh Nagar initially taken in Rickshaw and then by metro and thereafter how and in what mode she was taken to New Farakka, she does not know. This witness in her statement u/s 161 Cr.P.C. stated that the mother of the accused met with her and asked her to "mera beta mar jayega tum mere sath ghar chalo" but during the statement u/s 164 Cr.P.C. where the words "mera beta mar jayega. Tum mere sath ghar chalo" is not mentioned, which creates doubt in the prosecution story. Learned Counsel for accused further submitted that PW14 - SI Upkar Kaur, IO has failed to perform the proper investigation and the investigation being carried by her, is very biased and tainted. This witness has not made any recovery in respect of the material/object which alleged to be mixed in the food of the prosecutrix or mixed in the rice when the rice were offered to the prosecutrix by the accused Geeta. Learned Counsel for accused further submitted that accused Sukhdev and the prosecutrix were working at the same place. The prosecutrix was not happy with her husband and therefore she had offered & pressurised the accused Sukhdev to marry with her and when the accused Sukhdev told this fact to his mother i.e. accused Geeta, then the accused Geeta refused for the same, for two reasons. First thing that the prosecutrix was already a 26 of 79 27 FIR No. 174/12 PS - Adarsh Nagar married lady and second thing, the accused Sukhdev was just about 18 years, and therefore the accused Geeta sent the accused Sukhdev to village, in the manner to keep the prosecutrix away from accused Sukhdev. Feeling aggrieved with the same, the prosecutrix herself chased the accused Sukhdev upto his native village and there she pressurised the accused Sukhdev and other family members for marriage, and on refusal by all the family members, the prosecutrix returned back to Delhi and under a criminal conspiracy she falsely implicated the accused in the case. Learned Counsel for accused further submitted that prosecution has failed to prove its case and prayed for the acquittal of both the accused on all the charges levelled against them.
9. While the Learned Addl. PP for the State, on the other hand, submitted that the testimonies of the prosecution witnesses are cogent and consistent and 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.
27 of 79 28 FIR No. 174/12 PS - Adarsh Nagar
10. I have heard Sh. S. C. Sroai, Learned Addl. PP for the State and Sh. Dilip Kumar, Learned Counsel for the accused and have also carefully perused the entire record.
11. The charge for the offences punishable u/s 328 IPC, u/s 342 r/w 366 IPC & u/s 376 IPC against the accused Vasudev and Geeta is that on 10/07/2012 at about 11:00 p.m. at H. No. I6, H Block, Jahangir Puri, within the jurisdiction of PS - Adarsh Nagar accused Vasudev administered some stupefying or intoxicating substance in food served to the prosecutrix (name withheld) W/o Jitender aged about 34 years, on or before 10/07/2012 and on 10/07/2012 accused Geeta administered some stupefying or intoxicating substance in food served to the prosecutrix with intent to abduct or rape her and that on the aforesaid date, time and place accused Geeta abduct complainant/prosecutrix (name withheld) W/o Jitender and took her to some place at Farakka and confined her in a room and accused Sukhdev seduced her to illicit intercourse and that between 10/07/2012 to 17/07/2012 accused committed rape upon the complainant/prosecutrix (name withheld) W/o Jitender.
28 of 79 29 FIR No. 174/12 PS - Adarsh Nagar
12. It is to be mentioned that as a matter of prudence, in order to avoid any little alteration in the spirit and essence of the depositions of the material witnesses, during the process of appreciation of evidence at some places their part of depositions have been reproduced, in the interest of justice.
AGE OF THE PROSECUTRIX
13. PW13 - prosecutrix was examined in the Court on 07/03/2013, in her particulars, she has deposed her age as 34 years.
It is to be mentioned that on 26/11/2012, accused Sukhdev and Geeta made the statement before the Learned Predecessor Court wherein they admitted the proceedings u/s 164 Cr.P.C. conducted by Learned MM Ex. PX3 (Colly.) and also stated that they have no objection if the Learned MM is not examined in the Court as a witness.
The perusal of proceedings u/s 164 Cr.P.C. Ex. PX3 (Colly.) shows that the same were conducted on 06/08/2012 in which PW13 - prosecutrix has deposed her age as 34 years.
The said factum of the age of the prosecutrix being 34 years 29 of 79 30 FIR No. 174/12 PS - Adarsh Nagar has also not been disputed by the accused. Nor any evidence to the contrary has been produced or led on the record by the accused.
As the date of alleged incident is 10/07/2012 and the prosecutrix has deposed her age as 34 years on 06/08/2012, on the date of recording of her statement u/s 164 Cr.P.C. Ex. PX3 (Colly.) and has also deposed her age as 34 years in her particulars on 03/07/2013 on the date of recording of her statement in the Court. In the circumstances, on simple arithmetical calculation, the age of the prosecutrix comes to around 34 years as on the date of incident on 10/07/2012.
In view of above and in the circumstances, it stands established on record that PW13 prosecutrix was aged around 34 years as on the date of alleged incident on 10/07/2012. MEDICAL EVIDENCE OF THE PROSECUTRIX
14. PW1 Dr. Gagan, Junior Resident, BJRM Hospital, Delhi has deposed that on 20/07/2012 one patient/prosecutrix (name withheld) W/o Jitender, Age 34 years female was brought to hospital for medical examination with the alleged history of sexual assault from 11/07/2012 to 30 of 79 31 FIR No. 174/12 PS - Adarsh Nagar 17/07/2012. On examination no fresh external injury seen and thereafter the patient was referred to S.R. Gynae. for further examination. The MLC is Ex. PW1/A, bearing his signature at point 'A'.
PW7 Dr. Latika, S.R. Obs. & Gynae., BJRM Hospital, Delhi has deposed that on 20/07/2012 one patient/prosecutrix (name withheld) W/o Jitendra age34 years female was brought to hospital for medical examination. The patient was initially examined by J.R. on duty and thereafter she was referred to S.R. Gynae. where she had examined the patient. Patient has given the history of sexual assault with kidnapping for seven days. Coital frequency three to four times per day without condom with physical assault as well. No history of bleeding per vagina/burning micturition or pain abdomen. On examination, general condition was fair, vital stable. On per abdomen examination - soft non tender. On per speculam examination cervix and vagina were healthy, no signs and symptoms of sexual assault. On local examination pubic hair normal, no debris (patient had taken bath). On Per vaginal examination uterus was anteverted normal size, bilateral fornices were free, sexual assault kit completed and given to the constable. LMP was 02/07/2012. Her findings on the MLC (Ex. PW1/A) is Ex. PW7/A, 31 of 79 32 FIR No. 174/12 PS - Adarsh Nagar bearing her signature at point 'A'.
Despite grant of opportunity, PW1 - Dr. Gagan and PW7 - Dr. Latika were not crossexamined on behalf of the accused In view of above and in the circumstances, the medical and the gynaecological examination of PW13 - prosecutrix vide MLC Ex. PW1/A and vide findings Ex. PW7/A on the MLC Ex. PW1/A stands proved on the record.
VIRILITY OF THE ACCUSED
15. It is to be mentioned that on 26/11/2012, accused Sukhdev made the statement before the Learned Predecessor Court wherein he admitted his own medical examination vide MLC Ex. PX5 and MLC Ex. PX6 and also stated that he has no objection if the concerned Doctors are not examined in the Court as witnesses.
On careful perusal of the MLC Ex. PX6 of accused Sukhdev, it is found that the Doctor has opined there is nothing to suggest that he cannot perform sexual act.
In view of above and in the circumstances, it stands 32 of 79 33 FIR No. 174/12 PS - Adarsh Nagar proved on the record that accused Sukhdev was capable of performing sexual act.
DNA FINGER PRINTING EVIDENCE
16. PW12 Dr. Dhruw Sharma, Asstt. Director Biology, FSL, Rohini, Delhi deposed that on 01/08/2012 two sealed parcels were received in their office in connection with the present case and the same were marked to him for examination. He examined the exhibits biologically and he also conducted the DNA examination and thereafter prepared his report Ex. PW12/A, bearing his signature at point 'A'. After examination remnants of the exhibits were sealed with the seal of DS FSL Delhi.
As per DNA Report Ex. PW12/A, the description of the sources, DNA examination, result of examination and conclusion reads as under : DESCRIPTION OF THE ARTICLES CONTAINED IN PARCEL Parcel '1' : One sealed cardboard box parcel sealed with the seal of 'MS BJRMH J.PURI DELHI' containing exhibit '1a', '1b', '1c', '1d', '1e', '1f', '1g', 1h, 1i, 1j, 1k1, 1k2, 1l1, 1l2, 1m, 1n1 & 1n2 described to be of prosecutrix.
33 of 79 34 FIR No. 174/12 PS - Adarsh Nagar Exhibit '1a' : Cotton wool swab on a stick described as body fluid kept in a test tube.
Exhibit '1b' : Cotton wool swab on a stick described as In between fingers.
Exhibit '1c' : Three nail cuttings described as nail scrappings. Exhibit '1d' : Cotton wool swab on a stick described as Breast Swab.
Exhibit '1e' : Empty comb described as Pubic hair combing. Exhibit '1f' : Few small clippings of hair described as clipping of Pubic hair.
Exhibit '1g' : Cotton wool swab on a stick described as 'Cervical Mucus Collection'.
Exhibit '1h' : Two microslides having faint smear described as 'Vaginal Secretion'.
Exhibit '1i' : Cotton wool swab on a stick kept in a medium described as Culture.
Exhibit '1j' : Dirty liquid kept in a syringe described as washings from vagina.
Exhibit '1k1' : Cotton wool swab on a stick described as 'Rectal Examination'.
Exhibit '1k2' : Two microslides (rectal smear on slides). Exhibit '1l1' : Cotton wool swab on a stick described as Oral Swab. Exhibit '1l2' : Two microslides (Oral smear on slides). Exhibit '1m' : Dark brown liquid in two tubes described as Blood sample.
Exhibit '1n1' : Brownish liquid in a tube described as oxalate blood vial.
34 of 79 35 FIR No. 174/12 PS - Adarsh Nagar Exhibit '1n2' : Small amount of dirty liquid in a plastic container described as urine.
Parcel 3 : One sealed cloth parcel sealed with the seal of 'MS BJRMH J.PURI DELHI' containing exhibit '3'.
Exhibit '3' : Gauze cloth piece having brown stains described as Blood sample of accused.
RESULTS OF BIOLOGICAL EXAMINATION
1. Human semen was detected on exhibits '1g', '1h' and '1j'.
2. Semen could not be detected on exhibits 1a, 1b, 1d, 1f, 1i, 1k1, 1k2, 1l1 and 1l2.
3. Blood could not be detected on exhibit '1c'. DNA EXAMINATION Exhibits '1ghj' (cervical mucus swab, vaginal smear on microslides and vaginal washing of prosecutrix), and '3' (Blood sample of accused on gauze) were subjected to DNA isolation. DNA was isolated from exhibits '1ghj'. DNA was amplifies using Identifiler plus STR amplification kit. Gene Mapper IDx software was used for analysis.
RESULTS OF ANALYSIS DNA profile was generated in exhibit '3' (Blood sample of accused on gauze) whereas DNA profile could not be generated on exhibits 35 of 79 36 FIR No. 174/12 PS - Adarsh Nagar '1ghj' (cervical mucus swab, vaginal smear on microslides and vaginal washing of prosecutrix). Therefore comparison could not be done. Note :
Remnants of the exhibits have been sealed with seal of 'DS FSL DELHI'.
On careful perusal and analysis of the DNA Report Ex. PW12/A on the record, it clearly shows that Human semen was detected on the exhibits '1g' (Cervical Mucus Collection of the prosecutrix), '1h' (Vaginal Secretion of the prosecutrix) and '1j' (washings from vagina of the prosecutrix).
It is also been indicated that semen could not be detected on exhibits 1a (described as body fluid kept in a test tube of the prosecutrix), 1b (described as in between fingers of the prosecutrix), 1d (described as in breast swab of the prosecutrix), 1f (described as clippings of pubic hair of the prosecutrix), 1i (described as culture of the prosecutrix), 1k1 (described as rectal examination of the prosecutrix), 1k2 (described as rectal smear on slides of the prosecutrix), 1l1 (described as oral swab fingers of the prosecutrix) and 1l2 (described as oral smear on slides of the prosecutrix). Blood could not be detected on
36 of 79 37 FIR No. 174/12 PS - Adarsh Nagar exhibit '1c' (described as nail scrappings of the prosecutrix).
On a conjoint reading of the medical evidence vide MLC Ex. PW1/A, the gynaecological examination/findings Ex. PW7/A on the MLC Ex. PW1/A of the prosecutrix together with the MLC of the accused Sukhdev Ex. PX6, in the light of results of biological examination of the DNA Report Ex. PW12/A detailed and analysed here inabove, it clearly indicates the taking place of sexual intercourse activity.
In the circumstances, it stands clearly established on the record that the sexual intercourse activity has taken place in the instant case.
As per the DNA Report Ex. PW12/A, with regard to the description of the exhibits contained in the parcels, it is noticed that parcel no. 1 belong to PW13 - prosecutrix which was seized vide seizure memo Ex. PW5/A dated 20/07/2012 and parcel no. 3 belongs to accused Sukhdev which was seized vide seizure memo Ex. PW10/B dated 21/07/2012.
Although no DNA profile could be generated on exhibits '1g' (Cervical Mucus Collection of the prosecutrix), '1h' (Vaginal 37 of 79 38 FIR No. 174/12 PS - Adarsh Nagar Secretion of the prosecutrix) and '1j' (washings from vagina of the prosecutrix), therefore, no comparison could be done with the DNA Profile generated in Ex. 3 (blood sample of accused on gauze). Yet, as per the results of biological examination, forming part of the DNA Report Ex. PW12/A, prosecution has discharged its initial burden of proving the presence of HUMAN SEMEN on the exhibits '1g' (Cervical Mucus Collection of the prosecutrix seized vide seizure memo Ex. PW5/A), '1h' (Vaginal Secretion of the prosecutrix seized vide seizure memo Ex. PW5/A) and '1j' (washings from vagina of the prosecutrix seized vide seizure memo Ex. PW5/A).
Accused was under an obligation to explain how and under what circumstances, the human semen came to be present on the said exhibits '1g', '1h' and '1j' 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.
38 of 79 39 FIR No. 174/12 PS - Adarsh Nagar In the circumstances, there is no substance in the plea so raised by the Learned Counsel for the accused that the result of the FSL does not support the prosecution story and the allegations of the prosecutrix. It appears that such plea has been raised by the accused overlooking the stark reality which has been proved by the DNA Report Ex. PW12/A vide the results of biological examination, in order to save their skin form the clutches of the law.
17. Now let the testimony of PW13 Prosecutrix be perused and analysed.
PW13 prosecutrix, in her examinationinchief has deposed which is reproduced and reads as under : "I was working in Majlis Park at the house of Rajesh and was doing the packing work. Accused Sukhdev also used to work there. I can identify him, if shown to me.
At this stage the wooden partition is removed. The witness pointed towards the accused Sukhdev and identified him correctly.
At this stage the wooden partition is restored to its original position.
I used to carry my tiffin to the work place and accused Sukhdev also used to bring his own tiffin. At the time of lunch before 39 of 79 40 FIR No. 174/12 PS - Adarsh Nagar start taking my lunch I used to go for washing my hands and during this accused Sukhdev used to mix his food with the food brought by me and after taking the said food I used to feel giddy (Ajib sa). Sukhdev used to say me that his is (has) the step mother (Soteli Maa) and she does not cook the food properly for him, " Let you marry me" (Mere se Shaddi Kar lo) but I refused as I was already married. The day accused Sukhdev had proposed to me for marriage and I had refused for the same, he had also given beating to me.
On 10/07/2012 I was going for my duty and at about 9:30 a.m. when I reached at Majlis Park and on the way Geeta, the mother of accused Sukhdev met me, who said to me, "Mera Beta mar jaiga, tum mere sath ghar chalo" (Let me accompany with her otherwise her son will die) and thereafter she (Geeta) took me to house her house at Jahangir Puri and there she made me to eat rice (Chawal Khilai) and on eating the same I felt giddy (Ajeeb sa) and thereafter I started doing as was dictated/directed by her (Geeta) and I was taken to New Farka by Sukhdev and his mother and form there through rickshaw I was taken in a village whose name I do not know. I was kept in a small room for about 5/6 days and accused Sukhdev committed 'Galat Kaam' with me. 'Galat Kaam' I mean rape. From there through Rickshaw I was again brought to New Farka by accused Sukhdev and his mother and I was made to sit in a train to Delhi. I deboarded from the train at New Delhi Railway Station and thereafter I reached to my house on 17/07/2012. I was having fever for two days so I remained at my house. About two days thereafter I went to Police station, the exact date I do not recollect and I reported the matter to the police. I was taken to the hospital where I was medically examined. My statement was recorded and the same is Ex. PW13/A, bearing my signature at point A. My statement was also recorded u/s 164 Cr.P.C. The same is already Ex. PX3(colly.), bearing 40 of 79 41 FIR No. 174/12 PS - Adarsh Nagar my signature at point A. I can identify, Geeta, mother of accused Sukhdev.
At this stage the wooden partition is removed. The witness pointed towards the accused Geeta and identified her correctly.
At this stage the wooden partition is restored to its original position.
At this stage, Learned Addl. PP for State requested to put a leading question with regard to the clarification of the date of arrival of the witness at Delhi.
Heard and perused. In the circumstances, permission granted.
Q. Is it correct that you reached to Delhi at your house at Azadpur on 18/07/2012?
Ans. It is correct.
(Court Observation: The witness nodded her head to the positive while answering this question)."
From the aforesaid narration of PW13 - prosecutrix, it is clear that she was working in Majlis Park at the house of Rajesh and was doing the packing work. Accused Sukhdev also used to work there. She correctly identified the accused in the Court. She used to carry her tiffin to the work place and accused Sukhdev also used to bring his own tiffin. At the time of lunch before start taking her lunch she used to go for washing her hands and during this accused Sukhdev used to mix his food with the food brought by her and after taking the said food she used to 41 of 79 42 FIR No. 174/12 PS - Adarsh Nagar feel giddy (Ajib sa). Sukhdev used to say her that his is the step mother (Soteli Maa) and she does not cook the food properly for him, " Let she (prosecutrix) marry him" but she refused as she was already married. The day accused Sukhdev had proposed to her for marriage and she had refused for the same, he had also given beating to her. On 10/07/2012 she was going for her duty and at about 9:30 a.m. when she reached at Majlis Park and on the way Geeta, the mother of accused Sukhdev met her, who said to her, "Mera Beta mar jaiga, tum mere sath ghar chalo" (Let me accompany with her otherwise her son will die) and thereafter she (Geeta) took her (prosecutrix) to house her house at Jahangir Puri and there she made her to eat rice and on eating the same she felt giddy (Ajeeb sa) and thereafter she started doing as was dictated/directed by her (Geeta) and she was taken to New Farakka by Sukhdev and his mother and from there through rickshaw she was taken in a village whose name she does not know. She was kept in a small room for about 5/6 days and accused Sukhdev committed 'Galat Kaam' with her. By 'Galat Kaam' she means rape. From there through Rickshaw she was again brought to New Farakka by accused Sukhdev and his mother and she was made to sit in a train to Delhi. She 42 of 79 43 FIR No. 174/12 PS - Adarsh Nagar deboarded from the train at New Delhi Railway Station and thereafter she reached to her house on 17/07/2012. She was having fever for two days so she remained at her house. About two days thereafter she went to Police Station, the exact date she does not recollect and she reported the matter to the Police. She was taken to the hospital where she was medically examined. Her statement was recorded and the same is Ex. PW13/A, bearing her signature at point 'A'. Her statement was also recorded u/s 164 Cr.P.C. The same is already Ex. PX3 (colly.), bearing her signature at point 'A'. She correctly identified, Geeta, mother of accused Sukhdev in the Court.
PW13 - Prosecutrix during her crossexamination has negated the suggestions that she visited house of accused Sukhdev alongwith Uma or that she herself had gone to the village of accused Sukhdev and took her mother with her or that she was pressurising Geeta who is the mother of accused Sukhdev for her marriage with accused Sukhdev or that she was not wrongfully confined in a room in the village or that she has used her ATM Card in the village of accused Sukhdev and purchased goods/articles or that accused Geeta who is 43 of 79 44 FIR No. 174/12 PS - Adarsh Nagar mother of accused Sukhdev has refused for her marriage with accused Sukhdev and that is why she has falsely implicated accused Sukhdev and accused Geeta in the present case or that she is deposing falsely.
Inspite of incisive crossexamination of PW13 - prosecutrix nothing material has been brought out on the record so as to impeach her creditworthiness. In the witness box she has withstood the test of cross examination and her testimony is consistent throughout. Her testimony on careful perusal and analysis is found to be clear, natural, cogent, convincing, trustworthy and inspiring confidence. The version of this witness on the core spectrum of the crime has remained intact. There is nothing in her statement to suggest that she had any animus against the accused to falsely implicate them in the case.
The testimony of PW13 - Prosecutrix is also found to be corroborated by the medical evidence and the DNA Finger Printing evidence as discussed hereinbefore.
The testimony of PW13 - Prosecutrix is also found to be in consonance with her statement Ex. PW13/A made to the Police.
44 of 79 45 FIR No. 174/12 PS - Adarsh Nagar
18. While analysing the testimony of PW13 - prosecutrix as discussed hereinabove inspite of incisive crossexamination of the PW13 prosecutrix nothing has come out in her statements which may throw even a slightest doubt on the prosecution version of the incident. Though the suggestions by the defence to PW13 Prosecutrix that she visited house of accused Sukhdev alongwith Uma or that she herself had gone to the village of accused Sukhdev and took her mother with her or that she was pressurising Geeta who is the mother of accused Sukhdev for her marriage with accused Sukhdev or that she was not wrongfully confined in a room in the village or that she has used her ATM Card in the village of accused Sukhdev and purchased goods/articles or that accused Geeta who is mother of accused Sukhdev has refused for her marriage with accused Sukhdev and that is why she has falsely implicated accused Sukhdev and accused Geeta in the present case or that she is deposing falsely, were put, which were negated by the said PW but the same have not at all being made probable much established by any cogent evidence. Further there is not an iota of evidence or even a suggestion that the accused have been falsely implicated because of animosity.
45 of 79 46 FIR No. 174/12 PS - Adarsh Nagar
19. It is well settled that rape, is crime and not a medical condition. Rape is a legal term and not a diagnosis to be made by the medical officer treating the victim.
It is to be noticed that the opinion expressed by Modi in Medical jurisprudence and Toxicology (Twenty First Edition) at page 369 which reads as : "Thus to constitute the offence of rape it is not necessary that there should be complete penetration of penis with emission of semen and rupture of hymen. Partial penetration of the penis within the labia majora or the vulva or pudenda with or without emission of semen or even an attempt at penetration is quite possible to commit legally the offence of rape without producing any injury to the genitals or leaving any seminal stains. In such a case the medical officer should mention the negative facts in his report, but should not give his opinion that no rape had been committed. Rape, is crime and not a medical condition. Rape is a legal term and not a diagnosis to be made by the medical officer treating the victim. The only statement that can be made by the medical officer is that there is evidence of recent sexual activity. Whether the rape has occurred or not is a legal conclusion, not a medical one."
In Parikh's Textbook of Medical jurisprudence and 46 of 79 47 FIR No. 174/12 PS - Adarsh Nagar Toxicology, the following passage is found : "Sexual intercourse : In law, this term is held to mean the slightest degree of penetration of the vulva by the penis with or without emission of semen. It is therefore quite possible to commit legally the offence of rape without producing any injury to the genitals or leaving any seminal stains."
In Encyclopedia of Crime and Justice (Vol. 4) at page 1356, it is stated : ".....even slight penetration is sufficient and emission is unnecessary."
On analysing the testimony of PW13 - Prosecutrix in the light of medical examination vide MLC Ex. PW1/A, gynaecological examination/findings Ex. PW7/A on the MLC Ex. PW1/A of the prosecutrix and the Results of Biological examination of the DNA Finger Printing Evidence Ex. PW12/A together with the MLC of accused Sukhdev Ex. PX6, 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.
47 of 79 48 FIR No. 174/12 PS - Adarsh Nagar In the circumstances, it stands clearly established on the record, of the performance of the act of sexual intercourse by accused Sukhdev with PW13 - Prosecutrix without her consent.
20. Learned Counsel for accused submitted that the prosecution has failed to elaborate the reason for delay in registration of FIR, as it is self admission of the complainant that she returned back to Delhi on 18/07/2011 while the FIR was registered on 20/07/2011, so why she did not visit the Police Station on the same day, after having knowledge of commission of such serious offence.
I have carefully perused and analysed the evidence on record.
PW13 - prosecutrix in her examinationinchief has specifically deposed that she deboarded from the train at New Delhi Railway Station and thereafter, she reached to her house on 17/07/2012. She was having fever for two days so she remained at her house. About two days thereafter, she went to the Police Station and got recorded her statement, the exact date she does not recollect when she reported the 48 of 79 49 FIR No. 174/12 PS - Adarsh Nagar matter to the Police. She was taken to the Hospital where she was medically examined. Her statement was recorded and the same is Ex. PW13/A bearing her signature at point 'A'.
During her crossexamination by the Learned Addl. PP for the State while replying to a leading question PW13 prosecutrix admitted it to be correct that she reached Delhi at her house at Azad Pur on 18/07/2012.
There is nothing in the crossexamination of PW13 - prosecutrix so as to impeach her creditworthiness. On the said aspect, regarding which the plea had been raised by the Learned Counsel for the accused, she was not crossexamined.
It is settled law that if there is no crossexamination of a prosecution witness in respect of a statement of fact, it will only show the admission of that fact (Ref.: Wahid Ahmed and Ors. Vs. State (NCT of Delhi) 2011 VII AD (DELHI) 276).
In view of above and in the circumstances, the delay in reporting the matter to the Police on 20/07/2012 has been sufficiently and satisfactorily explained by the prosecution.
The sight cannot be lost of the fact that the Indian women 49 of 79 50 FIR No. 174/12 PS - Adarsh Nagar has tendency to conceal offence of sexual assault because it involves her prestige as well as prestige of her family. Only in few cases, the victim girl or the family members has courage to go before the Police Station and lodge a case.
Normally a woman would not falsely implicate for the offence of rape at the cost of her character. In Indian society, it is very unusual that a lady with a view to implicate a person would go to the extent of stating that she was raped. [Ref. 'Madan Lal Vs. State of MP' (1997) 2 Crimes 210 (MP)].
The Hon'ble Supreme Court in case 'Karnel Singh Vs. State of M.P.' (1995) 5 SCC 518, has held : "7.......The submission overlooks the fact that in India women are slow and hesitant to complain of such assaults and if the prosecutrix happens to be a married person she will not do anything without informing her husband. Merely because the complaint was lodged less then promptly does not raise the inference that the complaint was false. The reluctance to go to the police is because of society's attitude towards such women; it casts doubt and shame upon her rather than comfort and sympathise with her. Therefore, delay in lodging complaints in such cases does not necessarily indicate that her version is false (emphasis added)."
50 of 79 51 FIR No. 174/12 PS - Adarsh Nagar The Hon'ble Supreme Court in Para 21 in case 'Rajinder V. State of H.P.', AIR 2009 SC 3022 has interalia held : "21. In the context of Indian Culture, a woman victim of sexual aggression would rather suffer silently than to falsely implicate somebody. Any statement of rape is an extremely humiliating experience for a woman and until she is a victim of sex crime, she would not blame anyone but the real culprit. While appreciating the evidence of the prosecutrix, the Courts must always keep in mind that no selfrespecting woman would put her honour at stake by falsely alleging commission of rape on her and, therefore, ordinarily a look for corroboration of her testimony is unnecessary and uncalled for......."
The Hon'ble Supreme Court in Para 13 in case 'Om Prakash Vs. State of Uttar Pradesh', AIR 2006 SC 2214 has interalia held : "13. It is settled law that the victim of sexual assault is not treated as accomplice and as such, her evidence does not require corroboration from any other evidence including the evidence of a doctor. In a given case even if the doctor who examined the victim does not find sign of rape, it is no ground to disbelieve the sole testimony of the prosecutrix. In normal course a victim of sexual assault does not like to disclose such offence even before her family members much less before public or before the police. The Indian women has tendency to conceal such offence because it involves her prestige as well as prestige of her family. Only in few cases, the victim girl or the family members 51 of 79 52 FIR No. 174/12 PS - Adarsh Nagar has courage to go before the police station and lodge a case......"
The Hon'ble Supreme Court in Para 20 in case 'Satyapal Vs. State of Haryana', AIR 2009 SC 2190 has interalia held : "20. This Court can take judicial notice of the fact that ordinarily the family of the victim would not intend to get a stigma attached to the victim. Delay in lodging the First Information Report in a case of this nature is a normal phenomenon......."
In the case of 'Wahid Khan Vs. State of Madhya Pradesh', (2010) 2 SCC 9, the Hon'ble Supreme Court held : "It is a matter of common law that in Indian society any girl or woman would not make such allegations against a person as such she is fully aware of the repercussions flowing therefrom. If she is found to be false, she would be looked by the society with contempt throughout her life. For an unmarried girl, it will be difficult to find a suitable groom. Therefore, unless an offence has really been committed, a girl or a woman would be extremely reluctant even to admit that any such incident had taken place which is likely to reflect on her chastity. She would also be conscious of the danger of being ostracized by the society. It would indeed be difficult for her to survive in Indian society which is, of course, not as forward looking as the western countries are."
In the circumstances, there is no substance in the plea so 52 of 79 53 FIR No. 174/12 PS - Adarsh Nagar raised by the Learned Counsel for the accused.
21. Learned Counsel for accused submitted that the complainant is herself a married lady and as per her own statement, she was taken away on 10/07/2011 and was brought to Delhi on 18/07/2011, but it is very surprising & utter shocking that the husband of the complainant had not given any Police complaint either regarding missing of his wife/complainant or regarding kidnapping by someone. Not only this, even after returning back to Delhi, the complainant has neither informed her husband about this incident nor any statement of her husband was recorded before the Police. This creates a serious doubt in the prosecution story.
I have carefully perused and analysed the evidence on record.
PW13 - prosecutrix during her crossexamination has specifically deposed that : "My husband had visited Police Station during my absence from house but Police had not registered the FIR."
In the circumstances, it does not lie in the mouth of the 53 of 79 54 FIR No. 174/12 PS - Adarsh Nagar accused to express surprise and utter shock that the husband of the complainant had not given any Police Complaint either regarding missing of his wife/complaint or regarding kidnapping by someone.
As regards the plea raised that even after returning back to Delhi, the complainant has neither informed her husband about this incident nor any statement of her husband was recorded before the Police, is concerned, on careful perusal and analysis of the evidence of PW13 - prosecutrix, it is found that she was not crossexamined on the said facts by the accused.
At the cost of repetition, it is settled law that if there is no crossexamination of a prosecution witness in respect of a statement of fact, it will only show the admission of that fact (Ref.: Wahid Ahmed and Ors. Vs. State (NCT of Delhi) 2011 VII AD (DELHI) 276).
As regards nonrecording of any statement of the husband of the prosecutrix is concerned, it is evident from the record that during the crossexamination of PW14 - SI Upkar Kaur, IO, accused neither voiced their concern nor raised any apprehension regarding the nonexamination of the husband of the prosecutrix. She (PW14 - SI Upkar Kaur, IO) was 54 of 79 55 FIR No. 174/12 PS - Adarsh Nagar the only competent witness who would have been fully capable of explaining correctly the factual situation. In such a situation, the accused cannot be heard saying that since the husband of the prosecutrix was withheld by the prosecution, therefore, adverse inference should be drawn against the prosecution. (Ref. "Dahari & Ors. Vs. State of U.P." 2012 XI AD (S.C.) 297) 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 55 of 79 56 FIR No. 174/12 PS - Adarsh Nagar 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 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 other witnesses."
In case 'Narain Singh Vs. State' 2013 I AD (DELHI) 685, the Hon'ble Delhi High Court after referring to the cases, 'Pal Singh Vs. State of U.P.', (1979) 4 SCC 345, 'State of U.P. Vs. Anil Singh', AIR 1988 SC 1998 and 'Krishna Mochi Vs. State of Bihar', 2002 IV AD (S.C.) 45 held that, once it is held that the prosecution evidence is reliable and trustworthy and proves the offence, failure to examine other witnesses is not fatal. Nonexamination of further witnesses does not affect the credibility of the witnesses relied upon. It is quality of the evidence and not the number of witnesses that matters.
In the circumstances, there is no substance in the plea so raised by the Learned Counsel for the accused.
56 of 79 57 FIR No. 174/12 PS - Adarsh Nagar
22. Learned Counsel for accused submitted that the allegations of the complainant that she was having no sense, and she followed the terms of the accused persons after eating the rice is also not free from doubt, as one hand she says that she was having sense but on other hand, she is continuously telling in her statement that she was taken from Adarsh Nagar Metro Station to New Delhi, and thereafter she went by train and thereafter in village, which she has specifically named as New Farakka and thereafter she went by Rickshaw and thereafter she also having knowledge that she was detained in a room. So these self admissions of the complainants shows that she was having all senses & knowledge of what she was doing, but she has neither raised any alarm nor cried for help etc., therefore this story put by the complainant is not believable.
I have carefully perused and analysed the evidence on record.
PW13 - prosecutrix during her crossexamination has categorically deposed that : 57 of 79 58 FIR No. 174/12 PS - Adarsh Nagar "I regained my consciousness when we deboarded from the train in new Fraka. I did not raise alarm at new Fraka Railway Station as accused were saying that they will kill me if I raise alarm. I have stated to the Police that accused said me that if I raise alarm then they would kill me."
For nonraising of any hue and cry by PW13 - prosecutrix at New Farakka Railway Station, she has explained the reasons that she was threatened by the accused to kill her, if she raised the alarm. In the circumstances, nonraising of any hue and cry by PW13 prosecutrix does not falsify the case of the prosecution which is otherwise proved on record by the clear, cogent and convincing evidence.
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 there is no kind of injury etc. received by the complainant.
PW1 - Dr. Gagan stated in his examinationinchief that, "on examination no fresh external injury seen".
PW7 - Dr. Latika stated in her examinationinchief that, 58 of 79 59 FIR No. 174/12 PS - Adarsh Nagar "on per speculam examination, cervix and vagina were healthy, no signs and symptoms of sexual assault."
Learned Counsel for accused further submitted that this finding shows that there was no sexual assault upon the complainant and the allegations of forcefully Sex and Rape are not found and same are totally false.
I have carefully perused and analysed the evidence on record.
As regards nonfinding of any fresh external injury on the body and private parts of the prosecutrix is concerned, the absence of signs of any injury does not falsify the case of the prosecution which is otherwise proved on record by clear, cogent and convincing evidence.
Emission of semen or leaving of seminal stains or producing of any injury to the genitals is not necessary to constitute the offence of rape. Complete penetration or partial penetration of penis within the labia majora or the vulva or pudenda without emission of semen or even an attempt at penetration is quite possible to commit legally the offence 59 of 79 60 FIR No. 174/12 PS - Adarsh Nagar of rape without producing any injury to the genitals or leaving any seminal stains. (Vide Modi in Medical jurisprudence and Toxicology (Twenty First Edition) at page 369 & Parikh's Textbook of Medical jurisprudence and Toxicology).
Explanation appended to Section - 375 IPC clearly provides penetration is sufficient to constitute the sexual intercourse necessary to the offence of rape.
It is also to be noticed that in case, 'Ranjit Hazarika Vs. State of Assam', (1998) 8 SCC 635, the Hon'ble Supreme Court observed that nonrupture of hymen or absence of injury on victim's private parts does not belie the testimony of the prosecutrix.
In case 'O. M. Baby (Dead) by LRs Vs. State of Kerala', 2012 VI AD (S.C.) 521, the Hon'ble Supreme Court held that absence of injuries or mark of violence on the person of the prosecutrix may not be decisive, particularly, in a situation where the victim did not offer any resistance on account of threat or fear meted out to her.
In the circumstances, there is no substance in the plea so raised by the Learned Counsel for the accused.
60 of 79 61 FIR No. 174/12 PS - Adarsh Nagar
24. Learned Counsel for accused submitted that PW8 - SI Sunny Kumar has stated that the accused Sukhdev was produced before the J. J. Board at about 3:30 p.m. while PW10 - Constable Ramesh Tiwari has stated that they reached before J. J. Board alongwith the accused Sukhdev at about 4:00 to 4:30 p.m. Learned Counsel for accused further submitted that the contradictions regarding the timing of reaching/appearing before the J. J. Board creates doubt that these witnesses have not arrested the accused and have given such statement only on the instance of the IO/SHO concerned.
I have carefully perused and analysed the evidence on record.
PW8 - SI Sunny Kumar and PW10 - Constable Ramesh Tiwari have proved the apprehension memo of accused Sukhdev Ex. PW8/A and PW10 - Constable Ramesh Tiwari has also proved the personal search memo of accused Sukhdev Ex. PW10/A. I have carefully perused the apprehension memo of accused Sukhdev Ex. PW8/A in which in Column No. 6, the date and time of apprehension has 61 of 79 62 FIR No. 174/12 PS - Adarsh Nagar been shown as 21/07/2012 at 11:00 a.m. The said factum of the apprehension of accused Sukhdev vide apprehension memo Ex. PW8/A has not been disputed by accused Sukhdev nor he voiced any concern on his such apprehension vide apprehension memo Ex. PW8/A. PW8 - SI Sunny Kumar during his crossexamination has deposed that accused Sukhdev was produced before JJB at 3:30 p.m. while PW10 - Constable Ramesh Tiwari during his crossexamination has deposed that they reached at JJB at about 4:00 - 4:15 p.m. Moreover, such discrepancy is an inconsistency on the fringe and does not go to the root of the matter. 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. It is well settled that there are bound to be some discrepancies in the narration of certain witnesses when they speak out details and the corroboration of evidence with mathematical niceties cannot be expected in criminal cases.
Even the honest and truthful witness may differ in some details unrelated to the main incident because power of observation, retention and reproduction differs with individuals. Discrepancies which do not go to the root of the matter and shake the basic version of the 62 of 79 63 FIR No. 174/12 PS - Adarsh Nagar witnesses, therefore cannot be annexed with undue importance. (Ref. 'Mahmood Vs. State', 1991 RLR 287).
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.....".
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 63 of 79 64 FIR No. 174/12 PS - Adarsh Nagar 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 the discrepancies or improvements which do not materially affect the case of the prosecution and are insignificant cannot be made the basis of doubting the case of the prosecution. The Courts may not concentrate too much on such discrepancies or improvements. The purpose is to primarily and clearly sift the chaff from the grain and find out the truth from the testimony of the witnesses. Where it does not affect the core of the prosecution case, such discrepancy should not be attached undue significance. The normal course of human conduct would be that while narrating a particular incident, there may occur minor discrepancies. Such discrepancies may even in Law render credential to the depositions. The improvements or variations must essentially relate to the material particulars of the prosecution case. The alleged improvements and variations must be shown with respect to material particulars of the case and the occurrence. Every such improvement, not directly related to the occurrence is not a ground to doubt the testimony of a witness. The credibility of a definite circumstance of the prosecution case cannot be weakened with reference to such minor or insignificant improvements. Reference in this regard can be made to the judgments of this Court in Kathi Bharat Vajsur and Another Vs. State of Gujrat [(2010) 5 SCC 724], Narayan Chetanram Chaudhary and Another Vs. State of Maharashtra [(2000) 8 SCC 457], D. P. Chadha Vs. Triyugi Narain 64 of 79 65 FIR No. 174/12 PS - Adarsh Nagar 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.
25. Learned Counsel for accused submitted that the complainant/prosecutrix has specifically admitted during her examinationinchief that the complainant used to bring a Tiffin and the accused Sukhdev used to mix/pour something intoxicated in that whenever she used to go for washing her hands and after eating that she used to feel giddy but she has never made any complaint regarding this to anybody. During the crossexamination, this witness stated that she used to work with the accused on the second floor of three storey building. She further stated that nobody supervise their work and after the duty time was over, the same was informed by the father of Rajesh. She further admitted that she had not made complaint to anybody/anywhere when the accused Sukhdev asked her to marry. This witness further admitted that she told this fact to her husband but they did not make any Police complaint regarding this fact. Learned Counsel for accused 65 of 79 66 FIR No. 174/12 PS - Adarsh Nagar further submitted that such statement of the prosecutrix is not reliable, as there is no supporting evidence to the allegations and the same is only result of intention of the prosecutrix to implicate the accused in some false case. Learned Counsel for accused further submitted that if the accused Sukhdev would have any such intention for Sexual Assault, then he was having sufficient opportunities to commit the same at the workplace even, and there was no need to take the complainant to village, i.e. so far from Delhi.
I have carefully perused and analysed the evidence on record.
At the cost of repetition, the testimony of PW13 - prosecutrix has been reproduced, discussed and analysed hereinbefore and has been found to be natural, clear, cogent, convincing and trustworthy.
It is well settled that different persons act and react differently in a given situation.
Nonmaking of any complaint by PW13 - prosecutrix to anyone regarding that she used to feel giddy after taking the food brought 66 of 79 67 FIR No. 174/12 PS - Adarsh Nagar by her which was used to be mixed with something intoxicated by the accused Sukhdev, does not falsify the case of the prosecution which is otherwise proved on record by clear, cogent and convincing evidence.
As regards the plea raised, had accused Sukhdev any intention of sexual assault upon the prosecutrix, then he was having sufficient opportunities to commit the same at the work place and there was no need to take the prosecutrix to a village, a far off place from Delhi, is concerned, such fact must be especially within the knowledge of the accused and the burden of proving that fact was upon him as provided u/s 106 of the Indian Evidence Act, 1872. Further, such plea appears to have been raised overlooking the stark reality of the core spectrum of the crime deposed by PW13 - prosecutrix in order to save their skin form the clutches of the law.
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."
67 of 79 68 FIR No. 174/12 PS - Adarsh Nagar 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 PW13 - prosecutrix was confronted on the statement that the fact of washing of hands before taking lunch is not mentioned to the Police. This witness was further confronted on another statement that she has stated to the Police in her statement that the accused Sukhdev has also given beatings to her. Learned Counsel for accused further submitted that in view of the above confrontations in the statement of the prosecutrix, it becomes clear that she is varying/changing her statement time to time and therefore such statement are not relied upon and not believable.
I have carefully perused and analysed the evidence on record.
At the cost of repetition, as discussed hereinbefore, the testimony of PW13 - prosecutrix on careful perusal and analysis has been found to be natural, clear, cogent, convincing and trustworthy.
As regards the contradiction on the fact of washing of hands 68 of 79 69 FIR No. 174/12 PS - Adarsh Nagar before lunch and that the accused Sukhdev has also given beatings to her are concerned, these are the minor inconsistencies on the fringe which do not affect the credibility of the evidence of the prosecutrix. There are bound to be some discrepancies in the narration of the witnesses when they speak out details.
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.....".
At the cost of repetition, Even the honest and truthful witness may differ in some details unrelated to the main incident because power of observation, retention and reproduction differs with 69 of 79 70 FIR No. 174/12 PS - Adarsh Nagar individuals. Discrepancies which do not go to the root of the matter and shake the basic version of the witnesses, therefore cannot be annexed with undue importance. (Ref. 'Mahmood Vs. State', 1991 RLR 287).
At the cost of repetition, the Hon'ble Supreme Court of India in case 'Leela Ram Vs. State of Haryana', (1999) 9 SCC 525 has observed that there are bound to be some discrepancies in the narration of certain witnesses when they speak out details. The corroboration of evidence with mathematical niceties cannot be expected in criminal cases. Minor embellishments, there may be, but variations by reasons therefore should not render the evidence of eye witnesses unbelievable.
In the circumstances, there is no substance in the plea so raised by the Learned Counsel for the accused.
27. Learned Counsel for accused submitted that PW13 - prosecutrix stated in her statement u/s 161 Cr.P.C. that she was taken in the train by the accused Sukhdev from Metro Station to New Delhi and further to New Farakka. Whereas, in her statement u/s 164 Cr.P.C., she stated that she was taken in the train by the accused Smt. Geeta. During 70 of 79 71 FIR No. 174/12 PS - Adarsh Nagar her crossexamination, she stated that initially taken in Rickshaw and then by metro and thereafter how and in what mode she was taken to New Farakka, she does not know. This witness in her statement u/s 161 Cr.P.C. stated that the mother of the accused met with her and asked her to "mera beta mar jayega tum mere sath ghar chalo" but during the statement u/s 164 Cr.P.C. where the words "mera beta mar jayega. Tum mere sath ghar chalo" is not mentioned, which creates doubt in the prosecution story.
I have carefully perused and analysed the evidence on record.
On careful perusal and analysis of the statement u/s 161 Cr.P.C., statement u/s 164 Cr.P.C. Ex. PX3 (Colly.) and the testimony of PW13 - prosecutrix, it is found that so called improvements/ contradictions are in fact the 'clarifications' or 'elaborations' of the facts in response to the questions put to her which she was not supposed to state in the statements u/s 161 Cr.P.C. or u/s 164 Cr.P.C. [Ex. PX3 (Colly.)]. It is well settled that a witness cannot be expected to possess a photographic memory and to recall the details of an incident. It is not as 71 of 79 72 FIR No. 174/12 PS - Adarsh Nagar 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.
The Hon'ble Supreme Court in 'Bharwada Bhoginbhai Hirjibhai Vs. State of Gujrat' (1983) 3 SCC 217, has held much importance cannot be attached to minor discrepancies for the reasons :
1) By and large a witness cannot be expected to possess a photographic memory and to recall the details of an incident. It is not as if a video tape is replayed on mental screen; 2) Ordinarily it so happens that a witness is overtaken by events. The witness could not have anticipated the occurrence which so often has an element of surprise. The mental faculties therefore cannot be expected to be attuned to absorb the details.
3) The powers of observation differ from person to person, what one may notice, another may not. An object or movement might emboss its image on one person's mind whereas it might go unnoticed on the part of another.
In the circumstances, there is no substance in the plea so raised by the Learned Counsel for the accused.
28. Learned Counsel for accused submitted that despite having 72 of 79 73 FIR No. 174/12 PS - Adarsh Nagar mentioned about the rice in the FIR, the Police officials have neither taken any sample of those rice nor any such kind of eatable was recovered from the possession or their house by the Police officials, so the allegations regarding rice or anything eatable are totally false and baseless. Learned Counsel for accused further submitted that PW14 - SI Upkar Kaur, IO has failed to perform the proper investigation and the investigation being carried by her, is very biased and tainted. This witness has not made any recovery in respect of the material/object which alleged to be mixed in the food of the prosecutrix or mixed in the rice when the rice were offered to the prosecutrix by the accused Geeta.
I have carefully perused and analysed the evidence on record.
Undisputably, the alleged incident is of dated 10/07/2012 and the complaint Ex. PW13/A was made to the Police by PW13 - prosecutrix on 20/07/2012.
As regards the plea for nonrecovery in respect of the material/object which was alleged to be mixed in the food of the prosecutrix or mixed in the rice when the rice was offered to the 73 of 79 74 FIR No. 174/12 PS - Adarsh Nagar prosecutrix by the accused Geeta is concerned, it is not made clear by the Learned Counsel for the accused as to what benefit he intends to reap by raising the said plea. Such fact regarding as to what was mixed in the food/rice of the prosecutrix must be especially within the knowledge of the accused and the burden of proving that fact was upon them as provided u/s 106 of the Indian Evidence Act, 1872.
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."
I have carefully gone through the testimony of PW14 - SI Upkar Kaur, IO and she has given a graphic description of the steps taken during the course of investigation. Her testimony is found to be clear, cogent and reliable. There is nothing in her statement to suggest that she had any animus against the accused to falsely implicate them in the case.
74 of 79 75 FIR No. 174/12 PS - Adarsh Nagar In the circumstances, there is no substance in the plea so raised by the Learned Counsel for the accused.
29. Learned Counsel for accused submitted that accused Sukhdev and the prosecutrix were working at the same place. The prosecutrix was not happy with her husband and therefore she had offered & pressurised the accused Sukhdev to marry with her and when the accused Sukhdev told this fact to his mother i.e. accused Geeta, then the accused Geeta refused for the same, for two reasons. First thing that the prosecutrix was already a married lady and second thing, the accused Sukhdev was just about 18 years, and therefore the accused Geeta sent the accused Sukhdev to village, in the manner to keep the prosecutrix away from accused Sukhdev. Feeling aggrieved with the same, the prosecutrix herself chased the accused Sukhdev upto his native village and there she pressurised the accused Sukhdev and other family members for marriage, and on refusal by all the family members, the prosecutrix returned back to Delhi and under a criminal conspiracy she falsely implicated the accused in the case.
75 of 79 76 FIR No. 174/12 PS - Adarsh Nagar I have carefully perused and analysed the evidence on record.
The theory that, "The prosecutrix was not happy with her husband and therefore she had offered & pressurised the accused Sukhdev to marry with her and when the accused Sukhdev told this fact to his mother i.e. accused Geeta, then the accused Geeta refused for the same, for two reasons. First thing that the prosecutrix was already a married lady and second thing, the accused Sukhdev was just about 18 years, and therefore the accused Geeta sent the accused Sukhdev to village, in manner to keep the prosecutrix away of accused Sukhdev." and the theory that, "the prosecutrix herself chased the accused Sukhdev upto his native village and there she pressurised the accused Sukhdev and other family members for marriage, and on refusal by all the family members, the prosecutrix returned back to Delhi and under a criminal conspiracy she falsely implicated the accused in the case" so propounded by the accused have not at all being made probable, much 76 of 79 77 FIR No. 174/12 PS - Adarsh Nagar established by any cogent evidence. Moreover, during her cross examination, PW13 - prosecutrix has specifically negated the suggestions that she herself had gone to the village of accused Sukhdev and took her mother with her or that she was pressurising Geeta who is the mother of accused Sukhdev for her marriage with accused Sukhdev or that accused Geeta who is mother of accused Sukhdev has refused for her marriage with accused Sukhdev and that is why she has falsely implicated accused Sukhdev and accused Geeta in the present case or that she is deposing falsely.
It is pertinent to reproduce the relevant part of PW13 - prosecutrix which reads as under : "It is wrong to suggest that I myself had gone to the village of accused Sukhdev and took her mother with me. It is wrong to suggest that I was pressurising Geeta who is mother of accused Sukhdev for my marriage with accused Sukhdev."
"It is wrong to suggest that accused Geeta who is mother of accused Sukhdev has refused for my marriage with accused Sukhdev and that is why I have falsely implicated accused Sukhdev and accused Geeta in the present case. It is wrong to suggest that I am deposing falsely."
In the circumstances, there is no substance in the plea so 77 of 79 78 FIR No. 174/12 PS - Adarsh Nagar raised by the Learned Counsel for the accused.
30. In view of above and in the circumstances, prosecution has thus categorically proved beyond shadows of all reasonable doubts that on 10/07/2012 at about 9:30 a.m. at H. No. I6, H Block, Jahangir Puri, accused Sukhdev and Geeta administered some stupefying or intoxicating substance in food served to PW13 - prosecutrix aged around 34 years with intent to abduct or rape her and that they abducted PW13 - prosecutrix and took her to some place at Farakka and confined her in a room for about 5/6 days and accused Sukhdev seduced her to illicit intercourse and that between 10/07/2012 to 17/07/2012 accused Sukhdev committed rape upon PW13 - prosecutrix without her consent and against her will.
I accordingly hold accused Sukhdev and Geeta guilty for the offences punishable u/s 328 IPC and u/s 342 read with section 366 IPC. Further accused Sukhdev is also hold guilty for the offence punishable u/s 376 IPC and convict them thereunder.
31. In view of above discussion, I am of the considered opinion 78 of 79 79 FIR No. 174/12 PS - Adarsh Nagar that as far as the involvement of the accused Sukhdev and Geeta in the commission of the offences u/s 328 IPC and u/s 342 read with section 366 IPC and that of accused Sukhdev also in the commission of the offence u/s 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 Sukhdev and Geeta beyond shadows of all reasonable doubts and there is no room for hypothesis, consistent with that of innocence of accused. I, therefore, hold accused Sukhdev and Geeta guilty for the offences punishable u/s 328 IPC and u/s 342 read with section 366 IPC. Further, accused Sukhdev is also hold guilty for offence punishable u/s 376 IPC and convict them thereunder.
Announced in the open Court (MAHESH CHANDER GUPTA) on 25th Day of January, 2014 Additional Sessions Judge Special Fast Track Court (N/W District), Rohini, Delhi 79 of 79