Delhi District Court
State vs . Krishna on 6 April, 2013
1
FIR No. 33/2010
PS K. N. Katju Marg
IN THE COURT OF SH. MAHESH CHANDER GUPTA :
ADDITIONAL SESSIONS JUDGE : SPECIAL FAST TRACK
COURT : NORTHWEST DISTRICT : DELHI
Sessions Case No. : 07/13
Unique ID No. : 02404R0123102010
State Vs. Krishna
S/o Late Sh. Ashok Sharma
R/o H. No. 452, Shahbad,
Daulat Pur, Delhi.
FIR No. : 33/10
Police Station : K. N. Katju Marg
Under Sections : U/S 376/506/452/380 IPC
Date of committal to session Court : 09/06/2010
Date on which judgment reserved : 20/03/2013
Date of which judgment announced : 06/04/2013
J U D G M E N T
1. Briefly stated the case of the prosecution as unfolded by the report u/s 173 Cr.P.C is as under : 1 of 57 2 FIR No. 33/2010 PS K. N. Katju Marg That on 21/02/2010 on receiving DD No. 15A & 16A through wireless that in house no. 635, Sector 26 thieves had entered. In the meanwhile, PCR had also informed that a quarrel had taken place at H. No. 635, Sector2. On this information SI Sandeep Yadav alongwith Constable Jalraj Singh reached at H. No. 635, Sector26, Rohini where it revealed from the people gathered at the spot that three/four persons were taken to Police station by PCR on which SI Sandeep Yadav alongwith Ct. Jalraj returned back to Police Station where Anil Verma S/o Sh. Ram Kishan, R/o H. No. 635, Sector26, Rohini, his wife Anita and daughter/prosecutrix (named withheld being a case u/s 376 IPC) and Krishna, S/o Ashok Sharma, R/o H. No. 452, Near Hanuman Mandir, Village Shahbad met, who were interrogated on which prosecutrix (named withheld being a case u/s 376 IPC) with Lady Constable Geeta alongwith mother, father of prosecutrix and Krishna sent to BSA Hospital where the medical examination of the prosecutrix was got conducted vide MLC No. 7/10 on which doctor had endorsed that patient has not attained menarche, small laceration in past four chest & hymen raptured, admitted tip of finger, no injury mark seen over vulva. Thereafter, the statement of prosecutrix in the presence of her mother Anita recorded which is to the effect that, she is residing at the above 2 of 57 3 FIR No. 33/2010 PS K. N. Katju Marg mentioned address alongwith her parents, younger brothers Akash & Ashu and sister Saneha and studying in a Govt. school in classIV, situated at Sector17. Her father is a private car driver and her mother is a house wife. Yesterday night at about 10:30 p.m. her parents had gone to see off her grandmother at New Delhi Railway Station who was going to Allahabad, village and they all four brothers and sisters were sleeping. In the night at about 11:30 p.m. one person entered in the house and rubbed her back on which she got up. That person had worn one ear ring in his ear and had small moustache and had worn white pant & shirt and he started removing her clothes on which she cried but that person had gagged her mouth with his hand and removed her entire clothes and bite on her cheeks and also scratched on her breast with nails and started doing galat kaam with her and on hearing noise her younger brothers and daughter woke up. After removing her clothes that person had also seen her body parts with the help of his mobile phone's light and raped her and on hearing the noise of the prosecutrix and her brothers, sister, he left from the spot. She had seen his face in the light of mobile as there was darkness in the room at that time. After sometime, her parents had come and she disclosed the entry story to her parents. In the morning her parents enquired from the neighbourhood 3 of 57 4 FIR No. 33/2010 PS K. N. Katju Marg then it was revealed that boy who had done wrong deed (galat kaam) with her (prosecutrix) had come alongwith a neighbouring boy named Javed. On the asking of her parents that Javed brought this man who had done wrong deed with her to whom she identified on seeing who had worn one ear ring in his ear, whose name later on revealed as Krishna S/o Ashok Sharma, R/o H.No. 452, Hanuman Mandir, Village Shahbad. People had gathered and her parents had called the police who took her to the Ambedkar Hospital, Rohini for medical examination. That person namely Krishna had done wrong deed (galat kam). Action be taken against him and this statement she has made in the presence of her mother. On the basis of her statement a case u/s 376/380/451/506 IPC was got registered and investigation was handed over to Inspector Ram Kishan. During the course of investigation, site plan was prepared. Accused Krishna was arrested and his medical examination was got conducted, statements of witnesses u/s 161 Cr.P.C were recorded. Exhibits and sample seal were taken into police possession, case property got deposited in the malkhana, statement of prosecutrix/victim u/s 164 Cr.P.C. was got recorded, exhibits were sent to FSL for opinion.
Upon completion of necessary further investigation challan u/s 376/506/452/380 IPC was prepared against accused Krishna and was sent to 4 of 57 5 FIR No. 33/2010 PS K. N. Katju Marg the Court for trial.
2. Since the offence u/s 376 IPC is exclusively triable by the Court of Session, therefore, after compliance of the provisions of Section 207 Cr.P.C, the case was committed to the Court of Session u/s 209 Cr.P.C.
3. Upon committal of the case to the Court of Session, after hearing on charge prima facie a case u/s 458/324/376/506(II)/392/394 IPC was made out against accused Krishna. Charge was framed accordingly which was read over and explained to accused to which he pleaded not guilty and claimed trial.
4. In support of its case prosecution has in fact produced and examined 18 witnesses. PW1 Smt. Bharti Laroiya, Principal, Primary School, Sector17, Rohini, Delhi, PW2 The prosecutrix, PW3 Dr. Priyanka, BSA Hospital, Delhi, PW4 Javed, PW5 Sh. Anil Kumar, PW6 Ms. Samita Garg, Ld. JSCC Addl. Sr. Judge, Rohini Courts, Delhi, PW7 W/HC Chand Kiran, PW8 Ms. Anita Verma, PW9 ASI Narender Singh, PW10 Dr. Florence Almeida, Jag Parvesh Chandra Hospital, Shastri Park, Delhi, PW11 5 of 57 6 FIR No. 33/2010 PS K. N. Katju Marg Ct. Ajay, PW12 W/Ct. Geeta, PW13 Dr. Vipin Kumar, Sr. Surgery BSA Hospital, Rohini, PW14 SI Sandeep Yadav, PW15 W/Ct. Rama Rani, PW16 V. Shanker Narayanan, SSO, FSL, Rohini, Delhi, PW17 Constable Jalraj and PW18 Inspector Ram Kishan.
5. In brief, the witnessography of the prosecution witnesses is as under : PW1 Smt. Bharti Laroiya, Principal, Primary School, Sector17, Rohini, Delhi who produced the Admission Register of the year 2005 and 2007 of the School and deposed that Certificate Ext. P1 was issued by her which is Ext. PW1/A signed by her at point 'A' after verifying the School record and further deposed that as per the School record prosecutrix (name withheld) was admitted in Class I in the School on 05/07/2005 and at that time her date of birth was 27/05/1997. Her name was struck off on 07/08/2007 because of continued absence from the School but she was admitted again on 01/09/2007 in the Second class and after clearing Class - V, SLC was issued to her on 26/03/2011 and proved the photocopies of the extract of the entries relating to the prosecutrix Ex. PW1/B and Ex. PW1/C and further deposed that she has also produced the register containing 6 of 57 7 FIR No. 33/2010 PS K. N. Katju Marg admission form of the candidates admitted in the school and proved the copy of the admission form of the prosecutrix Ext. PW1/D and deposed that with regard to her date of birth, an affidavit was given by the mother of the prosecutrix and proved the copy of the same as Ex. PW1/E. PW2 The prosecutrix, is the victim who deposed regarding the incident and proved her statement made to the police Ext. PW2/A signed by her at point 'A', arrest memo of accused Ext. PW2/B, his personal search memo Ext. PW2/C signed by her at points 'A' and her statement made to the Magistrate recorded u/s 164 Cr.P.C Ext. PW2/D and also proved and identified her frock and underwear Ex. P1 and P2 respectively.
PW3 Dr. Priyanka, BSA Hospital, Delhi, who proved the medical/gynaecological examination of the prosecutrix as was conducted by Dr. Asha Arya, SR, Gynae vide MLC Ex. PW3/A signed by her Dr. Asha Arya at point 'A'.
PW4 Sh. Javed, is the friend of accused who deposed that on 20.02.2010 he alongwith his friends Sanjay, Inder, Krishna, Anil, Akhil, 7 of 57 8 FIR No. 33/2010 PS K. N. Katju Marg Koki, Sita Ram and Nandu were taking liquor in the house of his friend Anil near Community Center at Sector26 Rohini. About 11.30 PM, Sanjay went to his house and Krishna was left on the road and they all were (had) gone for taking dinner at their house. He (Javed) does not know where his friend Krishna has gone after they had left him (Krishna) on the road. In the morning at about 09.30 am Koki and Inderjeet came to his house and stated that Krishna has done some wrong in the house of Anil. He (Javed) was stated to bring his friend Krishna as he (Krishna) had done some wrong in Sector26. He (Javed) went to his (Krishna) house situated at Shahbad near Sector26 Rohini. He (Krishna) stated that he (Krishna) had not done anything wrong at Sector26 so he (Javed) bring (brought) him (Krishna) at Sector26, Rohini. Krishna was beaten by the public person gathered at Sector26 at the house of Anil. When he (Krishna) was bleeding then he (Javed) requested them to call the police and he (Krishna) was handed over to the police. He (Javed) knew the wife of Anil namely Anita from his childhood but Anil is not known to him. The wrong act done by Krishna with the daughter of Anil but he (Javed) does not know her name. Accused is present in Court (correctly identified). Accused was also identified as the daughter of Anita put her hand on him (Krishna) in presence of public person 8 of 57 9 FIR No. 33/2010 PS K. N. Katju Marg that he (Krishna) is the same person who had done wrong act with her.
PW5 Anil Kumar is the father of the prosecutrix who deposed regarding the incident as was disclosed to him by his wife Anita Verma (PW8) to whom it was disclosed by her daughter/prosecutrix.
PW6 Ms. Samita Garg, Ld. JSCC Addl. Senior Judge, Rohini Courts, Delhi who deposed that on 22.02.2010, she was posted at Rohini District Courts as MM and was the Second Link MM to the Court of PS K.N. Katju Marg and recorded the statement of the prosecutrix u/s 164 Cr.P.C Ext. PW2/D signed by her at Points D, E, F, G & H and proved the application of the investigating officer moved for obtaining the copy of the statement u/s 164 Cr.P.C Ext. PW6/A. PW7 W/HC Chand Kiran is the Duty Officer, who proved the copy of the FIR Ext. PW7/A and her endorsement on the rukka Ext. PW7/B. PW8 Ms. Anita Verma is the mother of the prosecutrix, who 9 of 57 10 FIR No. 33/2010 PS K. N. Katju Marg deposed regarding the incident as was disclosed to her by the prosecutrix.
PW9 ASI Narender Singh is the MHC(M) who deposed regarding the depositing of the sealed pullandas with sample seals in the malkhana and of sending the same to the FSL and proved the relevant entries of the Register No. 19 at Sl. No. 52 Ext. PW9/A. He also proved the copy of acknowledgment of the exhibits received by FSL officials given to Ct. Ajay Ext. PW9/C. PW10 Dr. Florence Almeida, Jag Parvesh Chandra Hospital, Shastri Park, Delhi who deposed that on 21.02.2010 he examined the patient Krishna. On examination patient was conscious, cooperative and oriented and there was no abnormality in his physical examination and proved the MLC of accused Krishna Ext. PW10/A signed by him at PointA. PW11 Ct. Ajay who deposed that on 20.04.2010 he took five sealed pullandas and two sample seals from the MHC(M) and deposited the same with the FSL vide Road Certificate No. 24/21/10 and after depositing the pullandas he took the acknowledgment and deposited the same with 10 of 57 11 FIR No. 33/2010 PS K. N. Katju Marg MHC(M) after returning to PS alongwith copy of Road Certificate.
PW12 W/Ct. Geeta who deposed that on 21.02.2010 she was called at BSA Hospital and as per the instructions of SI Sandeep Yadav she got medically examined the prosecutrix. After medical examination of the prosecutrix the sealed pullanda and a sample seal sealed with the seal of 'SD' were handed over to her by the doctor and she handed over the same to the IO SI Sandeep Yadav which were taken into possession vide memo Ext. PW12/A signed by her at PointA. PW13 Dr. Vipin Kumar, Sr. Surgery BSA Hospital, Rohini who proved the examination and endorsement of Dr. B. Reddy, Sr. Surgery at Point B and at Point C on the MLC of the Krishna Ext. PW10/A and after examination there was nothing to suggest that the patient cannot perform sexual intercourse.
PW14 SI Sandeep Yadav is the initial IO of this case, who deposed on the investigational aspects and besides proving the other memos also proved the copies of DD No. 15A & 16A Ext. PW14/A & Ext. PW14/B 11 of 57 12 FIR No. 33/2010 PS K. N. Katju Marg respectively, endorsement made on the rukka Ext. PW14/C at PointA. PW15 W/Ct. Rama Rani who deposed that on 21.02.2010 he was working as a Channel Operator at PHQ ITO, Delhi and her duty was from 8.00 AM to 2.00 PM. On that day at about 11.07 AM when she was sitting as Channel Operator on Extn. No. 140, she received a call from 9911823754 regarding a quarrel taken place at H.No. 635, Sector26, Rohini, Delhi. She transferred this call to the NET Operator and same was passed on to the PCR Van, Libra 65 by the NET Operator. She has brought the original form filled on that day and proved the copy of the computerized form Ext. PW15/A mentioning her name at PointA. PW16 V. Shanker Narayanan, SSO, FSL, Rohini, Delhi who proved the Biological and Serological Reports Ex. PW16/A and Ex. PW16/B respectively signed by him at points 'A'.
PW17 Constable Jalraj who joined investigation on 21/02/2010 and deposed on the investigational aspects and besides proving the other memos also proved the disclosure statement of accused Ex. PW17/A signed 12 of 57 13 FIR No. 33/2010 PS K. N. Katju Marg by him at point 'A', the seizure memo of the clothes and mobile phone of the accused Ex. PW17/B signed by him at point 'A', the seizure memo of the sealed exhibits of the accused handed over by the Doctor after medical examination Ex. PW17/C signed by him at point 'A', the seizure memo of ear rings and kada recovered during the personal search of accused Ex. PW17/D signed by him at point 'A' and also proved the mobile phone make SAMSUNG TATA Ex. P3, the shirt and pant of the accused Ex. P4 (Colly.), one kada and one ear ring of the accused Ex. P5 and P6 respectively.
PW18 Inspector Ram Kishan is the Investigating Officer (IO) of the case who deposed on the investigational aspects and besides proving the other memos also proved the site plan Ex. PW18/A signed by him at point 'A', the application for recording the statement of the prosecutrix u/s 164 Cr.P.C. Ex. PW18/B signed by him at point 'A', the application for obtaining the copy of statement u/s 164 Cr.P.C. Ex. PW18/C signed by him at point 'A' and also proved the mobile phone make SAMSUNG TATA Ex. P3, the shirt and pant of the accused Ex. P4 (Colly.), one kada and one ear ring of the accused Ex. P5 and P6 respectively.
13 of 57 14 FIR No. 33/2010 PS K. N. Katju Marg The testimonies of the material prosecution witnesses shall be dealt with in detail during the course of the appreciation of the evidence.
6. Statement of accused Krishna was recorded u/s 313 Cr.P.C wherein he pleaded innocence and false implication and opted not to lead any defence evidence.
7. Ld. Counsel for the accused submitted that during evidence of PW1 - Smt. Bharti Laroiya has stated that the date of birth of the prosecutrix was obtained on an affidavit which was not attested by any authority. The same was as per the affidavit of the parents. Accordingly, the date of birth of the prosecutrix could not be confirmed in the evidence of the PW1.
Ld. Counsel for accused further submitted that PW2 - the prosecutrix has stated that she has two brother and two sisters while PW5 - Sh. Anil Kumar, the father of the prosecutrix has stated that he has three daughters and one son in his statement u/s 161 Cr.P.C. Accordingly, there is a grave contradiction regarding the issues of the parents of PW2 - the prosecutrix and further submitted that PW2 has deposed u/s 161 Cr.P.C. that the clothes of the prosecutrix were removed by the accused while the PW2 -
14 of 57 15 FIR No. 33/2010 PS K. N. Katju Marg prosecutrix has stated in her statement u/s 164 Cr.P.C. that she herself removed the clothes at the time of alleged offence and that PW2 - prosecutrix has also deposed that the jewellery and cash of Rs. 3,000/ was taken by accused but the contents like this has not been disclosed u/s 161 Cr.P.C. Ld. Counsel for accused further submitted that PW2 has also deposed that the accused came to her house at 11:30 p.m. and remained there for 23 hours but the parents of the prosecutrix reached to the house 12:00 a.m. In night just after half an hour of the alleged offence. Accordingly, when the parents of the prosecutrix reached to the house the present occurrence must be happening in their presence. More so no action was done by the parent of the prosecutrix in whole night. Ld. Counsel further submitted that as per the contents of the evidence it is clear that the accused was called by PW4 - Javed on next morning. In the statement u/s 164 Cr.P.C. the prosecutrix has admitted that the accused also used a blade but in MLC there is no any weapon like blade or sharp weapon. Accordingly, it is clear that accused had neither used any weapon nor committed any injury on the part of prosecutrix and further submitted that it is mentioned that there is no any fresh injury on the part of the prosecutrix. PW2 had also admitted in her examination of evidence that she had already seen the accused prior to the 15 of 57 16 FIR No. 33/2010 PS K. N. Katju Marg present occurrence as he was plying auto rickshaw in the area. It is evident from the contents of the evidence that the story of the said matter has been manipulated.
Ld. Counsel for accused further submitted that PW4 - Javed has disclosed that the father of the prosecutrix is not the real father and real father is known to him who is not Anil as mentioned here. As per PW4 - Javed the theft in the house of the prosecutrix and accordingly PW4 - Javed has refused for any type of rape done by accused. He argued a person who had committed rape with anyone how can he come back to the house of the prosecutrix with PW4 Sh. Javed. Therefore, it is evident from the contents of the evidence of PW4 - Javed that accused did not commit any offence as alleged against him by the prosecution.
Ld. Counsel for accused further submitted that PW5 - Anil Kumar, the alleged father has been examined who has stated that he was not present in the house at the time of the occurrence and he only reached at the house at about 12:00 p.m. in the night and he was informed for the said happening. But he also did not proceed in the matter and only on next morning he called for PW4 - Javed alongwith the accused and beat the accused in his house. It is clear that PW5 was also known to the accused 16 of 57 17 FIR No. 33/2010 PS K. N. Katju Marg prior to the said offence. Accordingly, as per the evidence of PW5, it is quite impossible to commit any offence as proceeded herein like call of the accused by PW4 - Javed in the house of PW5 and simply handover the accused to Police.
Ld. Counsel for accused further submitted that mother of the prosecutrix has been examined as PW8 who has made a contrary statement during the course of evidence. It is clear from the contents of the evidence that the said PW has been informed by someone but did not know anything of her own. The statement u/s 161 Cr.P.C. is quite different and contradictory from the contents of the evidence recorded during trial of the case. Therefore, the evidence of PW8 is not believable and same is likely to be rejected.
Ld. Counsel for accused further submitted that in the whole story of the prosecution, it is not clear that the intention of the accused was to commit rape. However, from the evidence of PW4 - Javed it is clear that accused may commit offence of theft as alleged.
Ld. Counsel for accused further submitted that there is no any medical record against the accused that he has committed rape with the prosecutrix or had given her any injury.
17 of 57 18 FIR No. 33/2010 PS K. N. Katju Marg Ld. Counsel for accused further submitted that the prosecution has totally failed to establish the case against the accused and he has been falsely implicated in the case by way of manipulation and prayed that the accused be acquitted of the charges levelled against him.
8. While the Ld. Addl. PP for the State, on the other hand, submitted that the testimonies of the prosecution witnesses are cogent and consistent and the contradictions and discrepancies as pointed out are minor and not the material one's and do not affect the credibility of the witnesses and the prosecution has proved its case beyond reasonable doubt.
9. I have heard Sh. S. C. Sroai, Ld. Addl. PP for the State and Sh. M. A. Khan, Ld. Counsel for the accused and have also carefully perused the entire record.
10. The charge for the offences u/s 458/324/376/506(II)/392/394 IPC against accused Krishna is that on 20/02/2010 at 11:30 p.m. he committed the offence of lurking house trespass at night by entering into house no. 635, Sector - 26, Rohini, Delhi having made preparation or 18 of 57 19 FIR No. 33/2010 PS K. N. Katju Marg causing hurt and wrongfully restraining prosecutrix (name withheld) and that he gave teeth bite to her on her cheek, nose and also inflicted injuries on her person by blade and nails and that he committed rape with her and that he criminally intimidated prosecutrix and her brother to kill them in case they raise alarm and that he voluntarily caused hurt to prosecutrix while committing of robbery of Rs. 3,000/ and gold ear jewellery which was the property of the parents of the prosecutrix and was in their possession.
11. It is to be mentioned that as a matter of prudence, in order to avoid any little alteration in the spirit and essence of the depositions of the material witnesses, during the process of appreciation of evidence at some places their part of depositions have been reproduced, in the interest of justice.
AGE OF THE PROSECUTRIX:
12. PW8 - Anita Verma, mother of the prosecutrix in her examinationinchief has deposed that her daughter/prosecutrix was aged about 13 years on the date of the incident.
PW5 - Anil Kumar, father of the prosecutrix, in her 19 of 57 20 FIR No. 33/2010 PS K. N. Katju Marg examinationinchief has deposed that that the date of birth of his daughter/prosecutrix is 25/05/1997 and her age was about 13 years at the time of the incident.
During his crossexamination, PW5 - Anil Kumar has negated the suggestion that the prosecutrix is not his real daughter and voluntarily deposed that she was born in the year, 1997.
PW2 - Prosecutrix, in her examinationinchief has deposed that on 20/02/2010, she was studying is 4th class in a Government School, Sector
- 17, Rohini and her date of birth is 27/05/1997 and the same was also mentioned in her school record.
PW1 Smt. Bharti Laroiya, Principal, Primary School, Sector17, Rohini, Delhi who produced the Admission Register of the year 2005 and 2007 of the School and deposed that Certificate Ext. P1 was issued by her which is Ext. PW1/A signed by her at point 'A' after verifying the School record and further deposed that as per the School record prosecutrix (name withheld) was admitted in Class I in the School on 05/07/2005 and at that time her date of birth was 27/05/1997. Her name was struck off on 07/08/2007 because of continued absence from the School but she was admitted again on 01/09/2007 in the Second class and after clearing Class -
20 of 57 21 FIR No. 33/2010 PS K. N. Katju Marg V, SLC was issued to her on 26/03/2011 and proved the photocopies of the extract of the entries relating to the prosecutrix Ex. PW1/B and Ex. PW1/C and further deposed that she has also produced the register containing admission form of the candidates admitted in the school and proved the copy of the admission form of the prosecutrix Ext. PW1/D and deposed that with regard to her date of birth, an affidavit was given by the mother of the prosecutrix and proved the copy of the same as Ex. PW1/E. During her crossexamination, PW1 - Smt. Bharti Laroiya has deposed that : "It is correct that on Ex. PW1/B there is over writing at point 'A'. It is not necessary that we are giving admission only on the basis of the MCD Certificate regarding the age of the child. Vol. It can be on the basis of affidavit of parents regarding the age of the child also. Ex. PW1/E i.e. an affidavit was on plane paper and not attested by any Authority."
I have seen the over writing at point 'A' on the extract of the entries Ex. PW1/B. On careful perusal, it is found that it is not an over writing and whatever is mentioned in the column with regard to the date of birth as 27/05/1997 of the prosecutrix is as per the record and is also been corroborated by the certificate issued by PW1 Smt. Bharti Loriya Ex. PW1/A in which specifically it has been mentioned therein that as per the School 21 of 57 22 FIR No. 33/2010 PS K. N. Katju Marg record, the date of birth of the prosecutrix is 27/05/1997.
There is nothing in her crossexamination so as to impeach her creditworthiness. Her testimony is cogent, reliable and inspires confidence. It is not the case of the accused that any evidence to the contrary has been proved or produced on the record by him.
In the circumstances, it stands proved on record that the date of birth of PW2 - Prosecutrix is 27/05/1997.
As the date of the alleged incident is 20/02/2010 and the date of birth of the prosecutrix is 27/05/1997, on simple arithmetical calculation, the age of prosecutrix comes to 12 years, 8 months and 23 days as on the date of incident on 20/02/2010.
In view of above and in the circumstances, it stands established on record that PW2 Prosecutrix was aged 12 years, 8 months and 23 days as on the date of alleged incident on 20/02/2010.
13. Ld. Counsel for the accused submitted that during evidence of PW1 - Smt. Bharti Laroiya has stated that the date of birth of the prosecutrix was obtained on an affidavit which was not attested by any authority. The 22 of 57 23 FIR No. 33/2010 PS K. N. Katju Marg same was as per the affidavit of the parents. Accordingly, the date of birth of the prosecutrix could not be confirmed in the evidence of the PW1.
I have carefully perused and analysed the evidence on the record.
As discussed hereinabove, the testimony of PW1 - Smt. Bharti Laroiya is clear, cogent, reliable and inspires confidence and she has proved all the documents relating to the schooling of the prosecutrix indicating her date of birth as 27/05/1997. And in her crossexamination she has candidly deposed as reproduced hereinabove.
The Hon'ble Supreme Court in case State of Maharashtra Vs. Gajanan Hemant Janardhan Wankdhede (2008) 8 SCC 38 has held as under : "13. .....On the basis of the evidence of the Headmaster and the original school leaving certificate and the school register which were produced the High Court came to abrupt conclusion that normally for various reasons the guardians to understate the age of their children at the time of admission in the school. There was no material or basis for coming to this conclusion. The High Court in the absence of any evidence to the contrary should not have come to hold that the date of birth of the prosecutrix was not established and the school leaving certificate and the school register are not conclusive.
14. Interestingly, no question was put to the victim in cross 23 of 57 24 FIR No. 33/2010 PS K. N. Katju Marg examination about the date of birth. The High Court also noted that no document was produced at the time of admission and a horoscope was purportedly produced. There is no requirement that at the time of admission documents are to be produced as regards the age of the student....."
In view of above and in the circumstances, there is no substance in the plea so raised by the Ld. Counsel for the accused. VIRILITY OF ACCUSED KRISHNA
14. PW10 - Dr. Florance Almieda, Jag Parvesh Chandra Hospital, Shastri Park, Delhi, has deposed that on 21/02/2010, he was posted in Emergency Ward of BSA Hospital where he examined patient Krishna S/o Sh. Ashok and proved his MLC Ex. PW10/A signed by him st point 'A'.
During his crossexamination, PW10 Dr. Florance Almieda negated the suggestion that she did not prepare the said report correctly.
PW13 - Dr. Vipin Kumar, Senior Surgery, BSA Hospital, Rohini proved the medical examination of patient/accused Krishna conducted by Dr. Reddy, Senior Surgery on 21/02/2010 wherein, it has been opined that there was nothing to suggest that the accused cannot perform sexual intercourse, at 24 of 57 25 FIR No. 33/2010 PS K. N. Katju Marg point 'B' on the MLC Ex. PW10/A signed by Dr. Reddy at point 'C'.
Despite grant of opportunity, PW13 - Dr. Vipin Kumar was not crossexamined on behalf of the accused.
In the circumstances, it stands established on the record that accused Krishna was not incapable of performing sexual intercourse. MEDICAL EVIDENCE:
15. PW3 - Dr. Priyanka, BSA Hospital, Delhi has proved the medical/gynaecological examination of the prosecutrix as was conducted by Dr. Asha Arya on the MLC Ex. PW3/A signed by Dr. Asha Arya at point 'A'.
It is pertinent to reproduce the relevant part of examinationin chief of PW3 - Dr. Priyanka which reads as under : ".....The said MLC is Ex PW3/A bearing the signature of Dr. Asha Arya at point 'A'. As per the MLC after general examination of the prosecutrix Dr. Asha Arya mentioned that there are cut marks present on left side of the nose, teeth mark present on the left side of the cheek and nail scratch mark on the right breast. On local examination small laceration present on posterior fourchette, hymen ruptured admitting tip of finger, no injury on the Vulva. The sample were taken and sealing them it was handed over to the Police official".
Despite grant of opportunity, PW3 - Dr. Priyanka was not cross 25 of 57 26 FIR No. 33/2010 PS K. N. Katju Marg examined on behalf of the accused.
In the circumstances, the medical/gynaecological examination of the PW2 - Prosecutrix, as was conducted by Dr. Asha Arya, stands proved on the record.
BIOLOGICAL & SEROLOGICAL EVIDENCE:
16. PW16 V. Shanker Narayanan, SSO, FSL, Rohini, Delhi has proved the biological and serological reports Ex. PW16/A and Ex. PW16/B respectively signed by him at points 'A'.
As per biological report Ex. PW16/A the description of articles contained in parcel and result of analyses reads as under : DESCRIPTION OF ARTICLES CONTAINED IN PARCEL Parcel '1' : One sealed cloth parcel sealed with the seal of "SD" containing exhibits '1a', '1b', '1c(i)', '1c(ii)', '1d', '1e', '1f', '1g', 'lh', '1i', '1j', '1k', '1l', '1m', '1n(a)', '1n(b)', '1o(a)', '1o(b)', '1p(a)' and '1p(b)'.
Exhibit '1a' : On Frock having dirty stains.
Exhibit '1b' : One underwear.
Exhibit '1c(i)' : One microslide having faint white smear.
Exhibit' 1c(ii)' : Cotton Wool Swab.
Exhibit '1d' : Cotton Wool Swab.
Exhibit '1e' : Few Nail Clippings.
26 of 57
27
FIR No. 33/2010
PS K. N. Katju Marg
Exhibit '1f' : Cotton Wool Swab.
Exhibit '1g' : Sample not found.
Exhibit 'lh' : Sample not found.
Exhibit '1i' : Sample not found.
Exhibit '1j' : Sample not found.
Exhibit '1k' : Sample not found.
Exhibit '1l' : Cotton Wool Swab.
Exhibit '1m' : Liquid material.
Exhibit '1n(a)' : One microslide having faint white smear.
Exhibit '1n(b)' : Cotton Wool Swab.
Exhibit '1o(a)' : Cotton Wool Swab.
Exhibit '1o(b)' : One microslide having faint white smear.
Exhibit '1p(a)' : Dark brown foul smelling liquid.
and '1p(b)' : Dark brown foul smelling liquid.
Parcel '2' : One sealed cloth parcel sealed with the seal of
"SD" containing exhibits '2a', '2b', '2c', '2d', '2e', '2f', '2g(a)', '2g(b)' and '2h'.
Exhibit '2a' : Few strands of hair.
Exhibit '2b' : Few strands of hair.
Exhibit'2c' : Gauze cloth piece having brown stains.
Exhibit '2d' : Dark brown foul smelling liquid.
Exhibit '2e' : Cotton wool swab.
Exhibit '2f' : Cotton wool swab.
Exhibit '2g(a)' : One banian.
Exhibit '2g(b)' : One underwear.
Exhibit '2h' : One microslide having whitish smear.
Parcel '3' : One sealed cloth parcel sealed with the seal of
27 of 57
28
FIR No. 33/2010
PS K. N. Katju Marg
"YP" containing exhibits '3a' and '3b'
Exhibit '3a' : One shirt.
Exhibit '3b' : One pants.
RESULT OF ANALYSIS
1. Blood was detected on exhibits '1p(a)', '1p(b)', '2c' and '2d'.
2. Blood could not be detected on exhibits '1a', '1b', '1c(ii)', '1d', '1e', '1f', '1l', '1m', '1n(b)', '1o(b)', '2a', '2b' '2e', '2f', '3a' and '3b'.
3. Human semen was detected on exhibit '1a'.
4. Semen could not be detected on exhibits '1b', '1c(i)', '1c(ii)', '1d', '1f', '1l', '1m', '1n(b)', '1o(a)', '1o(b)', '2a', '2b' '2e', '2f', '3a' and '3b'.
5. Report of serological analysis in original is attached herewith.
The serological report Ex. PW16/B reads as under: Exhibits Species of origin ABO Grouping/Remarks Blood Stains: '1p(a)' Blood Sample Sample blood putrefied hence no opinion '1p(a)' Blood Sample Sample blood putrefied hence no opinion [Be read as '1p(b)'] '2c' Gauze cloth piece Human No reaction '2d' Blood Sample Sample blood putrefied hence no opinion Semen Stains: No reaction '1a' Frock 28 of 57 29 FIR No. 33/2010 PS K. N. Katju Marg On careful perusal and analysis of the biological and serological evidence on record, it clearly shows that the blood was detected on exhibits '1p(a)' (Blood Sample of the prosecutrix), '1p(b)' (Blood Sample of the prosecutrix), '2e' (Gauze cloth piece of the accused) and '2d' (Blood Sample of the accused). Human semen was detected on exhibit '1a' (Frock of the prosecutrix Ex. P1).
On a conjoint reading of the medical evidence, the gynaecological examination of the prosecutrix vide MLC Ex. PW3/A together with the MLC of accused Krishna Ex. PW10/A, in the light of the bioligical and serological evidence detailed hereinabove, it clearly indicates the taking place of recent sexual intercourse activity.
In the circumstances, it stands clearly established on the record that recent sexual intercourse activity has taken place in the instant case.
As per the biological report Ex. PW16/A with regard to the description of the articles, contained in the parcels, it is noticed that, parcel no. 1 belongs to PW2 - Prosecutrix which was seized vide seizure memo Ex. PW12/A, parcel no. 2 and parcel no. 3 belong to accused Krishna which were seized vide seizure memos Ex. PW17/C and Ex. PW17/B respectively.
29 of 57 30 FIR No. 33/2010 PS K. N. Katju Marg As per the biological report Ex. PW16/A, prosecution has discharged its initial burden of proving the presence of human semen on exhibit '1a' (Frock Ex. P1 of the prosecutrix seized vide memo Ex. PW12/A). Accused was under an obligation to explain how and in what circumstances, the human semen came to be present on the said exhibit '1a'. The absence of such an explanation both in 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.
17. Now, let the testimonies of PW2 - Prosecutrix, PW4 - Javed, PW5 - Sh. Anil Kumar and PW8 - Ms. Anita Verma be perused and analysed.
PW2 - Prosecutrix in her examinationinchief has deposed which is reproduced and reads as under : "In the year, 2010, I was residing at above stated address alongwith my parents and younger brother Anshu and sister Sneha and youngest brother Akash. The name of my mother is Anita Verma.
On 20/02/2010, I was studying in 4th class in a Government School, Sector - 17, Rohini. My parents had gone to the Station for leaving 30 of 57 31 FIR No. 33/2010 PS K. N. Katju Marg my grand mother as she has to go to Allahabad. My father used to plying private cars as a driver. I was in the house alongwith my younger brother and sister as mentioned above. At about 11:00 p.m. on that day, we were all sleeping in the house, at that time, I felt that someone was rubbing my back side. I got up and on seeing this I cried but that person had gagged my mouth and he removed my clothes and also see my body parts with the help of the mobile.
He also put a bite on my cheeks and also giving cut marks on my cheeks by the blade. He also pressed my breast. He also made my lie down and inserted his penis into my vagina and when I cried and raise noise he pressed my mouth. He forced me to tell about the place where the mother had kept her jewelery items because of his insistence I revealed that my mother used to keep the jewelery items in a Dal box. I can identify that person who is the accused present in the Court who had raped me and done said acts on my person. The accused present in the Court also taken out the jewelery items from the box of the Dal and in the mean time my brothers and sister woke up and when they cries the accused run away from the house. After about 1 hour my parents returned to our house and saw that the lock of the main door was in broken condition. I narrated the above facts to my parents also. On the next morning when my parents inquired from the neighborhood then they came to know that the accused person was in relation to one Javed. On the pursuance of my parents Javed and many other boys gathered including the accused present in the Court. On seeing the ear rings of the boy, I identified him (accused). My parents have given beating to the accused and handed over him to the Police. My parents have narrated all the facts to the Police and Police had got medically examined me and the accused whose alleged name as Krishna. Police had recorded my statement same is Ex. PW2/A signed by me at point 'A'. My mother has also signed at point 'B'. Accused was sent to lockup by the Police. I have signed arrest 31 of 57 32 FIR No. 33/2010 PS K. N. Katju Marg memo Ex. PW2/B signed by me at point 'A'. I had also signed the personal search memo Ex. PW2/C at point 'A'. My statement was also recorded u/s 164 Cr.P.C."
She also proved her statement recorded u/s 164 Cr.P.C. Ex. PW2/D. From the aforesaid narration of PW2 - Prosecutrix, it is clear that on 20/02/2010 when her parents had gone to the station for leaving her grand mother who was to go to Allahbad and the prosecutrix was in the house with her younger brothers and sister and was sleeping at about 11:00 p.m., she felt someone was rubbing her back side. She got up and on seeing this she cried but that person had gagged her mouth and he removed her clothes and also saw her body parts with the help of the mobile. He also put a bite on her cheeks and also giving cut marks on her cheeks by the blade. He also pressed her breast. He also made her lie down and inserted his penis into her vagina and when she cried and raise noise he pressed her mouth. He forced her to tell about the place where the mother had kept her jewelery items because of his insistence she revealed that her mother used to keep the jewelery items in a Dal box. She identified that person as accused present in the Court who had raped her and had done said acts on her person and who had taken out the jewelery items from the box.
32 of 57 33 FIR No. 33/2010 PS K. N. Katju Marg During her crossexamination PW2 - Prosecutrix negated the suggestion that her parents not returned to the house at all on that day.
Inspite of incisive crossexamination, nothing material has been brought out in the crossexamination of PW2 - Prosecutrix so as to impeach her creditworthiness. The testimony of PW2 - Prosecutrix on careful perusal and analysis is found to be clear, natural, cogent, reliable, trustworthy and inspires confidence. She has withstood the test of crossexamination and her testimony is consistent throughout. The version of PW2 - Prosecutrix on the core spectrum of the crime has remained intact. There is nothing in her statement to suggest that she had animus against the accused to falsely implicate him in the case.
The testimony of PW2 Prosecutrix has also been corroborated by the medical evidence and the biological and serological evidence as discussed hereinabove.
The testimony of PW2 - Prosecutrix is also found to be in consonance with her statement recorded u/s 164 Cr.P.C. Ex. PW2/D as well as her complaint made to the Police Ex. PW2/A signed by her at point 'A'.
The testimony of PW2 - Prosecutrix is also been corroborated by PW5 - Anil Kumar, her father and PW8 - Anita 33 of 57 34 FIR No. 33/2010 PS K. N. Katju Marg Verma, her mother to whom PW2 prosecutrix disclosed the facts relating to the crime immediately after the incident being relevant u/s 6 & 8 of the Indian Evidence Act, 1872.
PW5 - Anil Kumar in his examinationinchief has deposed which is reproduced and reads as under : "My daughter name is prosecutrix (name withheld) and her date of birth is 25/05/1997. Her age was about 13 years at the time of the incident. In the last year date and month I do not remember I had gone to leaving mother Anara Devi at New Delhi Railway Station as she has to go to Allahabad alongwith my wife Anita. I left from my house at about 09:00 p.m. as the train departure time was 11:00 p.m. I had gone leaving my all the four children including my daughter/prosecutrix (name withheld) in the house after locking my house from outside. When I and my wife returned to the house at about 12:00 night we saw that lock of the house was broken and my daughter was bleeding from her cheeks and she has narrated all the incident to her mother. In the morning we came to know that accused Krishna came to our house alongwith Javed who was also residing in Sector26 Rohini. I called Javed and asked him to bring accused Krishna. Javed brought accused Krishna with him at our house and he was identified by my daughter/prosecutrix (name withheld). He was beaten by all the persons collected there and ultimately we rang at number 100. Police arrived at the spot and taken the accused with him. Accused is present in the court today (correctly identified). My daughter/prosecutrix (name withheld) was studying in the class 4th at the time of this incident in the Govt. School in 34 of 57 35 FIR No. 33/2010 PS K. N. Katju Marg sector17 Rohini."
During his crossexamination PW5 - Anil Kumar has negated the suggestions that he is deposing falsely or that accused has been falsely implicated in this case or that a false story was made to implicate the accused in this false case.
PW8 - Anita Verma in her examinationinchief has deposed which is reproduced and reads as under : " On 20/02/2010, I alongwith my husband namely, Anil Kumar Verma had started from our house at about 10:50 p.m. to drop my motherin law namely Anara Devi at New Delhi Railway Station as she had to go to Allahabad and the said train had to go at 12:20 a.m. (night) at after making Anara Devi boarding the train we left to our house for which purpose we had engaged an auto rickshaw for coming and going and from the same auto we came back to our house thereafter. My children were alone in the house and I found that my daughter namely prosecutrix (name withheld) aged about 13 years who is the eldest of all my children was crying who told that when they were sleeping, one person entered into the house. She told me that she does not know as to how that person entered in to the house. Prior to leaving for Railway Station, I had locked the house from outside. I asked her as to why she did not raise any noise on which she told me that the person was having a blade with him who threatened her that if she raised noise then he would kill her. My daughter prosecutrix (name withheld) also told me that the accused had cut on her cheek with his teeth and also caused injuries on her face with blade. The said injuries were visible on the face of prosecutrix (name withheld). My daughter had also told me that the said person had stripped 35 of 57 36 FIR No. 33/2010 PS K. N. Katju Marg her naked and pressed her breast and she also told me that when she tried to raise noise, that person pressed her mouth also. She also told me that person also switched off the light and stripped her underwear also and stripped her naked and did batamiji with her. She also told me that that person had also raped her. I also asked her about the physic of that person and she told me that the said person had switched of the light who was seeing her naked in the light of his mobile phone at which point of time she saw that, he was having beard and was having a bali in his ear. Thereafter, I and my husband tried to search for the culprit but my daughter and other children remained in the house. Thereafter, my husband opined that we should go to the Police Station in the morning to lodge a complaint. We came back. My daughter told me that the said person was not anybody from the neighbourhood. In the morning, on the next day, I raised a noise that such an incident taken place in my house on the previous night thereupon many person gathered. They inquired from prosecutrix (name withheld) about the description of that person and when prosecutrix (name withheld) told them that he was having a beard also, those persons revealed that one person who was having beard and had a bali in his ear came alongwith a person namely Javed who were friends came in the previous night. Thereafter, we called Javed who used to reside at some distance from our house. Javed came and admitted that the previous night he had came with a person. We asked him to call that person and he brought that person with him. My daughter identified him as the same person who had committed said offences with her on the previous night. Thereafter, we also gave beatings to that person on which Javed told us that if we ourselves beat him then we shall not inform Police. We insisted that we would be informing the Police officials. Thereafter, we called the PCR and PCR came and took the accused present in the Court today (correctly identified) and my daughter to the Police Station. We also accompanied them and thereafter, my daughter was got medically examined at Ambedkar 36 of 57 37 FIR No. 33/2010 PS K. N. Katju Marg Hospital and after that my daughter was produced before the COUrt and her statement u/s 164 Cr.P.C. was recorded. My statement was recorded in the Police Station. Accused Krishna was arrested vide memo Ex. PW2/B and his personal search was carried out vide memo Ex. PW2/C which bears my signatures at point 'B' respectively."
During her crossexamination PW8 - Anita Verma has negated the suggestions that she is deposing falsely or that accused did not rape her daughter or that he has been falsely implicated in the present case or that she is tutored and voluntarily deposed the occurrence was told to her by her daughter.
From the aforesaid narration of PW5 - Anil Kumar, father of the prosecutrix and PW8 - Anita Verma, mother of the prosecutrix, it is clearly indicated that they have corroborated PW2 - prosecutrix in material particulars to whom prosecutrix disclosed the facts relating to the crime shortly after the incident, after their returning to the house from Railway Station.
On careful perusal and analysis of the testimony of PW5 - Anil Kumar and PW8 - Anita Verma are found to be clear, natural, cogent, inspiring confidence and having a ring of truth. They have withstood the rigors of crossexamination without being shaken. There is also nothing in 37 of 57 38 FIR No. 33/2010 PS K. N. Katju Marg their statements to suggest that they had an animus against the accused to falsely implicate him in the case.
Further the testimonies of PW2 - Prosecutrix, PW5 - Anil Kumar and PW8 - Anita Verma are corroborated by PW4 - Javed.
PW4 - Javed in his examinationinchief has deposed which is reproduced and reads as under : "I am an auto driver. On 20/02/2010, I alongwith my friends Sanjay, Inder, Krishna, Anil, Akhil, Koki, Sita Ram and Nandu were taking liquor in the house of my friend Anil near Community Centre at Sector26 Rohini. About 11:30 p.m., Sanjay went to his house and Krishna was left on the road and we all were gone for taking dinner at our house. I do not know where our friend Krishna has gone after we had left him on the road. In the morning at about 09:30 a.m. Koki and Inderjeet came to my house and stated that Krishan has done some wrong in the house of Anil. I was stated to bring my friend Krishna as he has done some wrong in Sector26, I went to his house situated at Shahbad near Sector26 Rohini. He stated that he has not done anything wrong at Sector26 so I bring him at Sector26 Rohini. Krishna was beaten by the public person gathered at Sector26 at the house of Anil. When he was bleeding then I requested them to call the Police and he was handed over to the Police. I know the wife of Anil namely Anita from my childhood but Anil is not known to me. The wrong act done by Krishna with the daughter of Anil but I do not know her name. Accused is present in the Court today (correctly identified). Accused was also identified as the daughter of Anita put her hand on him in presence of public person that he is the same person who has done wrong act with her."
38 of 57 39 FIR No. 33/2010 PS K. N. Katju Marg From the aforesaid narration of PW4 - Javed it is clear that on 20.02.2010 he alongwith his friends Sanjay, Inder, Krishna, Anil, Akhil, Koki, Sita Ram and Nandu were taking liquor in the house of his friend Anil near Community Center at Sector26 Rohini. About 11.30 PM, Sanjay went to his house and Krishna was left on the road and they all were (had) gone for taking dinner at their house. He (Javed) does not know where his friend Krishna has gone after they had left him (Krishna) on the road. In the morning at about 09.30 am Koki and Inderjeet came to his house and stated that Krishna has done some wrong in the house of Anil. He (Javed) was stated to bring his friend Krishna as he (Krishna) had done some wrong in Sector26. He (Javed) went to his (Krishna) house situated at Shahbad near Sector26 Rohini. He (Krishna) stated that he (Krishna) had not done anything wrong at Sector26 so he (Javed) bring (brought) him (Krishna) at Sector26, Rohini. Krishna was beaten by the public person gathered at Sector26 at the house of Anil. When he (Krishna) was bleeding then he (Javed) requested them to call the police and he (Krishna) was handed over to the police. He (Javed) knew the wife of Anil namely Anita from his childhood but Anil is not known to him. The wrong act done by Krishna with the daughter of Anil but he (Javed) does not know her name. Accused 39 of 57 40 FIR No. 33/2010 PS K. N. Katju Marg is present in Court (correctly identified). Accused was also identified as the daughter of Anita put her hand on him (Krishna) in presence of public person that he (Krishna) is the same person who had done wrong act with her.
During his crossexamination PW4 - Javed has negated the suggestions that he is deposing falsely or that accused is innocent or that accused has not committed the alleged offence or that the prosecutrix has not identified the accused when he was brought by him (PW4 - Javed) at her house at Sector - 26, Rohini.
His testimony on perusal and analysis is found to be clear, natural, cogent, inspiring confidence and having a ring of truth. He withstood the rigors of crossexamination without being shaken. There is nothing in his statement to suggest that he had any animus against the accused to falsely implicate him in the case.
18. While analysing the testimony of PW2 - Prosecutrix, PW4 - Javed, PW5 - Anil Kumar and PW8 - Anita Verma as discussed herein above, inspite of incisive crossexamination nothing has come out in their statements which may throw even a slightest doubt on the prosecution version of the incident. Though, the suggestions by the defence to PW2 -
40 of 57 41 FIR No. 33/2010 PS K. N. Katju Marg Prosecutrix that her parents not returned to the house at all on that day and the suggestions to PW4 - Javed that he is deposing falsely or that accused is innocent or that he has not committed the alleged offence or that prosecutrix had not identified the accused when he was brought by him (PW4 - Javed) at her house at Sector - 26, Rohini and the suggestions to PW5 - Anil Kumar that he is deposing falsely or that the accused has been falsely implicated in the case or that a false story was made to implicate the accused in this false case and the suggestions to PW8 - Anita Verma that she is deposing falsely or that accused did not rape her daughter or that he has been falsely implicated in the present case or that she is tutored, were put, which were negated by the said PWs but the same have not at all been made probable much established by any cogent evidence. Further there is not an iota of evidence or even a suggestion that the accused has been falsely implicated because of animosity.
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 41 of 57 42 FIR No. 33/2010 PS K. N. Katju Marg Medical jurisprudence and Toxicology (Twenty First Edition) at page 369 which reads as : "Thus to constitute the offence of rape it is not necessary that there should be complete penetration of penis with emission of semen and rupture of hymen. Partial penetration of the penis within the labia majora or the vulva or pudenda with or without emission of semen or even an attempt at penetration is quite possible to commit legally the offence of rape without producing any injury to the genitals or leaving any seminal stains. In such a case the medical officer should mention the negative facts in his report, but should not give his opinion that no rape had been committed. Rape, is crime and not a medical condition. Rape is a legal term and not a diagnosis to be made by the medical officer treating the victim. The only statement that can be made by the medical officer is that there is evidence of recent sexual activity. Whether the rape has occurred or not is a legal conclusion, not a medical one."
In Parikh's Textbook of Medical jurisprudence and Toxicology, the following passage is found:
"Sexual intercourse: In law, this term is held to mean the slightest degree of penetration of the vulva by the penis with or without emission of semen. It is therefore quite possible to commit legally the offence of rape without producing any injury to the genitals or leaving any seminal stains."
In Encyclopedia of Crime and Justice (Vol. 4) at page 1356, it 42 of 57 43 FIR No. 33/2010 PS K. N. Katju Marg is stated:
".....even slight penetration is sufficient and emission is unnecessary."
On analysing the testimony of PW2 - prosecutrix in the light of medical evidence, biological and serological evidence, gynaecological examination of the prosecutrix vide MLC Ex. PW3/A and the MLC of accused Krishna Ex. PW10/A, as discussed hereinbefore, the act of performing of recent sexual intercourse activity by complete penetration of penis with emission of semen or by partial penetration of the penis with emission of semen, within the labia majora or the vulva or pudenda stands proved.
In the circumstances, it stands clearly established on the record, of the performance of the act of sexual intercourse by accused Krishna with PW2 - prosecutrix without her consent.
20. Ld. Counsel for the accused submitted that no action was taken by the parents of the prosecutrix in the whole night.
I have carefully perused and analysed the evidence on the record.
43 of 57 44 FIR No. 33/2010 PS K. N. Katju Marg From the testimony of PW5 - Anil Kumar, father of the prosecutrix, PW8 - Anita Verma, mother of the prosecutrix and PW4 - Javed, as discussed and detailed hereinbefore, it is clearly proved that the matter was reported to the Police in the next morning of 21/02/2010, of the committal of the crime in the intervening night of 2021/02/2010.
In the circumstances, there was no delay in reporting the crime to the Police.
The sight cannot be lost of the fact that the Indian women 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 : 44 of 57 45 FIR No. 33/2010 PS K. N. Katju Marg "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)."
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 : 45 of 57 46 FIR No. 33/2010 PS K. N. Katju Marg "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 has courage to go before the police station and lodge a case......"
The Hon'ble Supreme Court in Para 20 in case Satyapal V. 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 circumstances, there is no substance in the plea so raised by the Ld. Counsel for the accused.
46 of 57 47 FIR No. 33/2010 PS K. N. Katju Marg
21. Ld. Counsel for accused submitted that PW2 - the prosecutrix has stated that she has two brother and two sisters while PW5 - Sh. Anil Kumar, the father of the prosecutrix has stated that he has three daughters and one son in his statement u/s 161 Cr.P.C. Accordingly, there is a grave contradiction regarding the issues of the parents of PW2 - the prosecutrix.
I have carefully perused and analysed the evidence on record. PW2 - Prosecutrix in her examinationinchief has deposed that in the year, 2010 she was residing at House No. 635, Sector - 26, Rohini, Delhi alongwith her parents, younger brother Anshu, sister Sneha and youngest brother Akash.
While PW5 - Anil Kumar, father of the prosecutrix in his examinationinchief has deposed that "I had gone leaving my all the four children including my daughter/prosecutrix (name withheld) in the house after locking my house from outside.
In view of above and in the circumstances, there is no contradiction in the testimonies of PW2 - prosecutrix and PW5 - Anil Kumar, her father on the said aspect. It appears rhat Ld. Counsel for accused either has not read the evidence of said PWs carefully or have misread them. Further if the plea of Ld. Counsel for accused is that PW5 - Anil Kumar in 47 of 57 48 FIR No. 33/2010 PS K. N. Katju Marg his statement u/s 161 Cr.P.C. has alleged that he has three daughters and one son, then he should have been confronted during his crossexamination, which was not done. For this accused is to blame himself and none else.
In the circumstances, there is no substance in the plea so raised by the Ld. Counsel for the accused.
22. Ld. Counsel for accused submitted that PW2 has deposed u/s 161 Cr.P.C. that the clothes of the prosecutrix were removed by the accused while the PW2 - prosecutrix has stated in her statement u/s 164 Cr.P.C. that she herself removed the clothes at the time of alleged offence.
I have carefully perused and analysed the evidence on record. PW2 - prosecutrix in her examinationinchief has deposed that : "At about 11:00 p.m. on that day, we were all sleeping in the house, at that time, I felt that someone was rubbing my back side. I got up and on seeing this I cried but that person had gagged my mouth and he removed my clothes and also see my body parts with the help of the mobile.
He also put a bite on my cheeks and also giving cut marks on my cheeks by the blade. He also pressed my breast. He also made my lie down and inserted his penis into my vagina and when I cried and raise noise he pressed my mouth."
In her statement u/s 164 Cr.P.C. Ex. PW2/D, PW2 - prosecutrix 48 of 57 49 FIR No. 33/2010 PS K. N. Katju Marg has stated : "I do not know how one person trespassed into their house. He switched off the light. He started rubbing my back side. When I got up and became frightened. When I cried but my mouth was pressed by that man. When I tried to run, he pressed my neck. That person asked me to remove my clothes. On my refusal, that man bite on my cheeks and because of fear I removed my clothes."
The careful perusal of the said evidence clearly indicates that PW2 - prosecutrix has adhered to the core spectrum of crime. The Hon'ble Supreme Court in case, 'Bharwada Bhoginbhai Hirjibhai Vs. State of Gujrat' (1983) 3 SCC 217, has held much importance cannot be attached to minor discrepancies for the reasons :
1) By and large a witness cannot be expected to possess a photographic memory and to recall the details of an incident. It is not as if a video tape is replayed on mental screen; 2) Ordinarily it so happens that a witness is overtaken by events. The witness could not have anticipated the occurrence which so often has an element of surprise. The mental faculties therefore cannot be expected to be attuned to absorb the details.
The Hon'ble Supreme Court of India in case Leela Ram Vs. 49 of 57 50 FIR No. 33/2010 PS K. N. Katju Marg 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.
It is a settled principle of law that every improvement or variation cannot be treated as an attempt to falsely implicate the accused by the witness. The approach of the Court has to be reasonable and practicable. (Reference Ashok Kumar Vs. State of Haryana [(2010) 12 SCC 350] and Shivlal and Another Vs. State of Chhattisgarh [(2011) 9 SCC 561]).
The Hon'ble Supreme Court in Para 21 of the case titled Kuria & Anr. Vs. State of Rajasthan 2012 XI AD (S.C.) 376 has held that : "21.............. This Court has repeatedly taken the view that 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 50 of 57 51 FIR No. 33/2010 PS K. N. Katju Marg discrepancies or improvements. The purpose is to primarily and clearly sift the chaff from the grain and find out the truth from the testimony of the witnesses. Where it does not affect the core of the prosecution case, such discrepancy should not be attached undue significance. The normal course of human conduct would be that while narrating a particular incident, there may occur minor discrepancies. Such discrepancies may even in Law render credential to the depositions. The improvements or variations must essentially relate to the material particulars of the prosecution case. The alleged improvements and variations must be shown with respect to material particulars of the case and the occurrence. Every such improvement, not directly related to the occurrence is not a ground to doubt the testimony of a witness. The credibility of a definite circumstance of the prosecution case cannot be weakened with reference to such minor or insignificant improvements. Reference in this regard can be made to the judgments of this Court in Kathi Bharat Vajsur and Another Vs. State of Gujrat [(2010) 5 SCC 724], Narayan Chetanram Chaudhary and Another Vs. State of Maharashtra [(2000) 8 SCC 457], D. P. Chadha Vs. Triyugi Narain Mishra and Others [(2001) 2 SCC 205] and Sukhchain Singh Vs. State of Haryana and others [(2002) 5 SCC 100].
In the circumstances, there is no substance in the plea so raised by the Ld. Counsel for the accused.
23. Ld. Counsel for accused submitted that PW2 - prosecutrix has deposed that the jewellery and cash of Rs. 3,000/ was taken by accused but 51 of 57 52 FIR No. 33/2010 PS K. N. Katju Marg the contents like this has not been disclosed u/s 161 Cr.P.C.
I have carefully perused and analysed the evidence on record. PW2 - prosecutrix in her examinationinchief has specifically deposed that : "He forced me to tell about the place where the mother had kept her jewelery items because of his insistence I revealed that my mother used to keep the jewelery items in a Dal box. I can identify that person who is the accused present in the Court who had raped me and done said acts on my person. The accused present in the Court also taken out the jewelery items from the box of the Dal and in the mean time my brothers and sister woke up and when they cries the accused run away from the house."
PW2 - prosecutrix was not crossexamined on the said aspect. Nor was confronted with her statement u/s 161 Cr.P.C. during her cross examination. For this accused is to blame himself and none else. He is to drink what he has brewed.
In the circumstances, there is no substance in the plea so raised by the Ld. Counsel for the accused.
24. Ld. Counsel for accused submitted that PW2 has deposed that the accused came to her house at 11:30 p.m. and remained there for 23 hours but the parents of the prosecutrix reached to the house 12:00 a.m. In night 52 of 57 53 FIR No. 33/2010 PS K. N. Katju Marg just after half an hour of the alleged offence. Accordingly, when the parents of the prosecutrix reached to the house the present occurrence must be happening in their presence.
I have carefully perused and analysed the evidence on record. It appears that Ld. Counsel for the accused has raised this plea either not reading the evidence on record or after misreading and miscalculating the time. PW2 - prosecutrix in her examinationinchief has deposed that accused trespassed into her house at about 11:00 p.m. and after about one hour her parents returned to the house and saw that the lock of main door was in broken condition.
It is pertinent to reproduce the relevant part of examinationin chief of PW2 - prosecutrix which reads as under: "At about 11:00 p.m. on that day, we were all sleeping in the house, at that time, I felt that someone was rubbing my back side. I got up and on seeing this I cried but that person had gagged my mouth and he removed my clothes and also see my body parts with the help of the mobile.
He also put a bite on my cheeks and also giving cut marks on my cheeks by the blade. He also pressed my breast. He also made my lie down and inserted his penis into my vagina and when I cried and raise noise he pressed my mouth. He forced me to tell about the place where the mother had kept her jewelery items because of his insistence I revealed that my mother used to keep the jewelery items in a Dal box. I can identify that person who is the accused present in the Court who had raped me and done 53 of 57 54 FIR No. 33/2010 PS K. N. Katju Marg said acts on my person. The accused present in the Court also taken out the jewelery items from the box of the Dal and in the mean time my brothers and sister woke up and when they cries the accused run away from the house. After about 1 hour my parents returned to our house and saw that the lock of the main door was in broken condition."
PW5 - Anil Kumar, father of the prosecutrix in his examination inchief has deposed that : "I left from my house at about 09:00 p.m. as the train departure time was 11:00 p.m. I had gone leaving my all the four children including my daughter/prosecutrix (name withheld) in the house after locking my house from outside. When I and my wife returned to the house at about 12:00 night we saw that lock of the house was broken and my daughter was bleeding from her cheeks and she has narrated all the incident to her mother."
There is nothing in the crossexamination of PW2 - prosecutrix and PW5 - Anil Kumar on the said aspects so as to impeach their creditworthiness. They have withstood the rigors of crossexamination without being shaken. The versions of PW2 - prosecutrix on the core spectrum of crime has remained intact.
In the circumstances, there is no substance in the plea so raised by the Ld. Counsel for the accused.
54 of 57 55 FIR No. 33/2010 PS K. N. Katju Marg
25. Ld. Counsel for accused submitted that in the statement u/s 164 Cr.P.C. the prosecutrix has admitted that the accused also used a blade but in MLC there is no any weapon like blade or sharp weapon. Accordingly, it is clear that accused had neither used any weapon nor committed any injury on the part of prosecutrix and further submitted that it is mentioned that there is no any fresh injury on the part of the prosecutrix.
I have carefully perused and analysed the evidence on record. PW3 - Dr. Priyanka, BSA Hospital, Delhi in her examination inchief has deposed that : ".....The said MLC is Ex PW3/A bearing the signature of Dr. Asha Arya at point 'A'. As per the MLC after general examination of the prosecutrix Dr. Asha Arya mentioned that there are cut marks present on left side of the nose, teeth mark present on the left side of the cheek and nail scratch mark on the right breast.
In the circumstances, there is no substance in the plea so raised by the Ld. Counsel for the accused.
26. In view of above and in the circumstances, prosecution has thus 55 of 57 56 FIR No. 33/2010 PS K. N. Katju Marg proved beyond shadows of all reasonable doubts that on 20/02/2010 at about 11:00 p.m. accused Krishna committed the offence of lurking house trespass at night by entering into the house no. 635, Sector - 26, Rohini, Delhi after preparation for hurt, assault or wrongful restraint and wrongfully restrained and criminally intimidated PW2 prosecutrix and also gave teeth bite to her on her cheek, nose and also inflicted injuries on her person by blade and nails and pressed her breast and also saw her body parts with the help of mobile and committed rape upon her without her consent and also gagged and pressed her mouth when she cried and raised noise and forced her to tell about the place where her mother had kept jewellery and committed robbery of jewellery articles belonging to her mother from Dal box.
I accordingly, hold accused Krishna guilty for the offences punishable u/s 458/324/376/506/392 IPC and convict him thereunder.
27. In view of above discussion, I am of the considered opinion that as far as the involvement of the accused Krishna in the commission of the offences u/s 458/324/376/506/392 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 Krishna 56 of 57 57 FIR No. 33/2010 PS K. N. Katju Marg beyond reasonable doubt and there is no room for hypothesis, consistent with that of innocence of accused. I, therefore, hold accused Krishna guilty for the offences punishable u/s 458/324/376/506/392 IPC and convict him thereunder.
Announced in the open Court (MAHESH CHANDER GUPTA) on 06th Day of April, 2013 Additional Sessions Judge Special Fast Track Court (N/W District), Rohini, Delhi 57 of 57