Delhi District Court
State vs . 1. Hari Ram on 24 July, 2014
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FIR No. 207/09
PS - Aman Vihar
IN THE COURT OF SH. MAHESH CHANDER GUPTA :
ADDITIONAL SESSIONS JUDGE : SPECIAL FAST TRACK
COURT : NORTHWEST DISTRICT : ROHINI : DELHI
SESSIONS CASE NO. : 194/13
Unique ID No. : 02404R0319892009
State Vs. 1. Hari Ram
S/o Rajit Ram
R/o D108, Indra Enclave,
Phase - II, Delhi.
2. Suresh @ Pintu
S/o Ram Swaroop Rai
R/o D101, Indra Enclave - II,
Delhi.
FIR No. : 207/09
Police Station : Aman Vihar
Under Sections : 376 (2)(g)/342 IPC
Date of committal to session Court : 12/12/2009
Date on which judgment reserved : 15/07/2014
Date on which judgment announced : 24/07/2014
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FIR No. 207/09
PS - Aman Vihar
J U D G M E N T
1. Briefly stated the case of the prosecution as unfolded by the report under section 173 Cr.P.C. is as under : That on 17/06/2009, complainant/prosecutrix (name withheld being a case u/s 376 IPC) W/o Sh. Pankaj Sharma R/o Agar Nagar, Prem Nagar III, Delhi came to PS Aman Vihar and got lodged a DD No. 39B regarding committal of her rape by two persons. On receipt of DD No. 39B SI Kamal Singh accompanied by HC Kuldip Singh and Lady Constable Pushpa took the prosecutrix to SGM Hospital, Mangol Puri, Delhi and got conducted her medical examination vide MLC No. 7672, E. No. 3901 and obtained the MLC. On the MLC the doctor had endorsed alleged history of sexual assault on the evening of 14/06/2009, L/E abrasion over left fore arm etc. In the hospital prosecutrix made the statement to SI Kamal Singh which is to the effect that, she lives at the above address on rent and is having three children. She was working in the thread factory of Manoj where she worked for about a month and had left the same about four days ago. The said factory is in D Block, Indra Enclave II, Delhi. In the said factory, one 2 of 93 3 FIR No. 207/09 PS - Aman Vihar boy named Pintu also used to work there. Manoj Kumar was running the said factory on rent in the house of Hari Ram. She was to take wages for a month from the owner of the factory (Mai Pata Uprokat Par Kiraye Par Rehti Hoon. Mere Teen Bachhe Hain, Mai Manoj Ki Factory Mei Dhage Ki Factory Mei Kaam Karti Thi Jo Qareeb Ek Mahina Kaam Kiya Va Char Din Pehle Chor Di. Yeh Factoy D - Block, Indra Enclave IInd, Delhi Mei Hai. Is Factory Mei Pintoo Naam Ka Ladka Bhi Mere Saath Kaam Karta Tha. Jo Hari Raam Ke Makaan Mei Yeh Factory Kiraye Par Manoj Kumar chalata Hai. Mere Qareeb Mahina Bhar Ke Paise Maine Factory Malik Se Lene The). On 14/06/2009, at about 6:00 p.m., she received a call of Pintu on her mobile phone that Thekedar is giving money, come and take the money (Jo Dinank 14/06/2009 Ko Samay Qareeb 6:00 Baje Mere Mobile Phone Par Pintoo Ka Phone Aaya Ki Thekedar Paise De Raha Hai, Paise Le Jao). She at that time, reached to take the money and there Pintu and house owner Hari Ram was present. She was told that the Thekedar is just coming and she was made to sit in that room (Mai Ussi Samay Paise Lene Pahunch Gai Wahan Par Pintoo Va Makaan MAlik Hari Ram Maujood The. Mujhe Kaha Gaya Ki Thekedar Abhi Aa Raha Hai Aur Mujhe Kamra Mei Bitha 3 of 93 4 FIR No. 207/09 PS - Aman Vihar Diya). Thereafter, Pintu bolted the outside gate and the room in which she was made to sit and in that room, Pintu forcibly committed rape upon her and he was seeming to be in an inebriated condition (jo nasha sharaab me lag raha tha). House owner Hari Ram who was also in that room, thereafter, he also committed rape upon her. She made every effort to get release herself but she could not get herself released. She has suffered abrasions (kharochen) below the right eye and on the hands. After committal of the rape they threatened her if she disclosed about the incident to anyone then they will kill her. When Pintu committed the rape Hari Ram caught hold her hands and when she started screaming, he (Hari Ram) pressed her mouth. When Hari Ram committed rape then Pintu pressed her mouth. In this manner both of them by bolting from inside room in the factory, committed gang rape turn by turn upon her and had also threatened to kill on disclosing it (Fir Pintoo Ne Bahar Wale Gate Va Mere Ko Bithaye Gaye Kamre Ki Kundi Laga Di Aur Pintoo Ne Mere Saath Usi Kamre Mei Jabardasti Balatkaar Kiya Jo Nasha Sharaab Mei Lag Raha Tha. Makaan Malik Hari Ram Jo Bhi Usi Kamre Mei Tha Iske Baad Usne Bhi Mere Saath Balatkaar Kiya. Maine Churane Ki Bhi Koshish Ki Thi Magar Chura Na Saki. Mujhe Dahine 4 of 93 5 FIR No. 207/09 PS - Aman Vihar Aankh Ke Neeche Va Haath Par Kharonchein Bhi Aai. Jo Balatkaar Ke Baad Un Logon Ne Mujhe Dhamki Di Ki Agar Tumne Kisi Ko Batlaya To Jaan Se Maar Denge. Jab Pintoo Ne Balatkaar Kiya To Hari Ram Ne Haath Pakde Va Chillane Lagi To Muh Daba Diya. Jab Hari Ram Ne Balatkaar Kiya To Pintoo Ne Muh Daba Diya. Is Prakaar In Dono Ne Mujhe Factory Mei Kamre Mei Andar Kundi Laga Kar Bari Bari Se Samuhik Balatkaar Kiya Va Batane Par Jaan Se Maarne Ki Dhamki Di Thi). Due to fear of her being killed till date she had not disclosed about the incident to anyone and on today (17/06/2009), she told all about the incident to her Bhabhi Kamlesh who has brought her with her husband to the Police Station (Jo Maine Dar Ke Mare Abhi Tak Kisi Ko Nahi Bataya tha. Jo Aaj Apni Bhabhi Kamlesh Ko Saari Baatein Batlai. Jo Mujhe, Mere Pati Va Apne Saath Le Kar Thana Aa Gai). Her internal medical examination has been got conducted from Sanjay Gandhi Hospital, Mangol Puri. Legal action be taken against them. This incident was committed at about 6:20 p.m. in the evening. Her statement has been recorded and has been read out and understood by her and is correct. From the statement and inspection of the MLC, finding that offences u/s 342/376/506/34 IPC appeared to have been committed, case was got 5 of 93 6 FIR No. 207/09 PS - Aman Vihar registered and the investigation was proceeded with. During the course of investigation site plan was prepared, statements of the witnesses were recorded and on finding sufficient material, accused Suresh @ Pintu and Hari Ram were arrested. Both the accused made disclosure statements. Pointing out memo of the place of incident i.e. in the room on the bed, opposite gate of House no. D108, was prepared at the instance of both the accused. Both the accused were got medically examined and the sealed exhibits handed over by the doctor after their medical examination were taken into police possession and were deposited in the malkhana. Statement of the prosecutrix u/s 164 Cr.P.C. was got recorded. Sealed exhibits were sent to the FSL.
Upon completion of the necessary investigation, challan for the offences u/s 342/376(2)(g) IPC was prepared against accused Suresh @ Pintu and Hari Ram and was sent to the Court for trial.
2. Since the offence under section 376(2)(g) 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 6 of 93 7 FIR No. 207/09 PS - Aman Vihar Session under section 209 Cr.P.C.
3. Upon committal of the case to the Court of session and after hearing on charge, prima facie a case u/s 366 r/w section 34 IPC, section 342 r/w section 34 IPC and section 376 (2)(g) IPC was made out against both the accused. 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, the prosecution has produced and examined 14 witnesses. PW1 HC Kuldeep Singh, PW2 HC Sradhanand, PW3 Tanki Devi, PW4 HC Joginder Singh, PW5 Smt. Kamlesh, PW6 Constable L. Bhargav, PW7 Constable Rajesh, PW8 Sh. Sudhanshu Kaushik, Learned MM, PW9 Dr. Parvinder, SR Gynae, PW10 Constable Mahesh Kumar, PW11 Constable (Retd.) Pushpa Rani, PW12 Dr. Manoj Dhingra, CMO, Mortuary, SGM Hospital, Mangol Puri, Delhi, PW13 SI Kamal Singh and PW14 - Ms. Shashi Bala, Senior Scientific Officer, Biology, FSL, Rohini, Delhi.
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5. In brief the witnessography of the prosecution witnesses is as under : PW1 HC Kuldeep Singh, who deposed that on 17/06/2009, he was posted at PS - Aman Vihar. On that day, on receiving DD No. 39, he alongwith SI Kamal Singh and Lady Constable Pushpa Devi and prosecutrix (name withheld) reached at SGM Hospital, Mangol Puri where prosecutrix (name withheld) was got medically examined in the presence of L/Constable Pushpa Devi. After her medical examination, prosecutrix (name withheld) made her statement and SI Kamal Singh prepared rukka and handed over to him for registration of FIR and he went to PS and after registration of FIR, he came back to Hospital and handed over copy of FIR and original rukka to SI Kamal Singh. Thereafter, they returned to the spot and IO prepared the site plan at the instance of prosecutrix (name withheld) and at the instance of prosecutrix (name withheld), both the accused persons Hari Ram and Suresh present in the Court (correctly identified) were arrested from D101 and D108, Inder (Indra) Enclave, Phase - II, Delhi vide memo Ex. PW1/A and PW1/B signed by him at point 'A' and their personal search were recorded vide memo Ex. PW1/C and PW1/D signed by him 8 of 93 9 FIR No. 207/09 PS - Aman Vihar at point 'A'. Both the accused persons made their disclosure statement vide memo Ex. PW1/E and PW1/F signed by him at point 'A'. Both the accused persons pointed out the site vide pointing out memo Ex. PW1/G signed by him at point 'A'. Thereafter, they returned at PS alongwith both the accused persons and his statement was recorded in this regard.
PW2 HC Sradhanand, is the Duty Officer who deposed that on 17/06/2009 he was working as Duty Officer at PS Aman Vihar from 5:00 p.m. to 1:00 a.m. night and at about 7:50 p.m. he received rukka from HC Kuldeep Singh sent by SI Kamal Singh on the basis of which he recorded the FIR, the copy of the same is Ex. PW2/A (OSR), signed by him at point 'A' and his endorsement on rukka is Ex. PW2/B, signed by him at point 'A'.
PW3 Prosecutrix is the victim who deposed regarding the incident and proved her statement made to the Police Ex. PW3/A, bearing her thumb mark at point 'A', proved her statement u/s 164 Cr.P.C. Ex. PW3/B, bearing her thumb mark at point 'A' and also identified and proved her clothes, one underwear, one petticot, one saree 9 of 93 10 FIR No. 207/09 PS - Aman Vihar and one blouse Ex. P1 to Ex. P4 respectively and one torn underwear, one torn salwar, one torn lady shirt, one torn brassier and one Chunni Ex. P5 to Ex. P9 respectively. She did not support the prosecution and was also crossexamined by the Learned Addl. PP for the State.
PW4 HC Joginder Singh, who deposed that on 17/06/2009, he was working as MHC(M) at PS Amar Vihar. On that day, SI Kamal Singh deposited eight sealed pullinda with the seal of SGMH Govt. of NCT Delhi along with sample seal, he made entry at S. No. 163 in Register No. 19. On 18/06/2009 SI Kamal Singh again deposited eight sealed pullindas with the seal of SGMH Govt. of NCT Delhi along with two sample seals, he made entry at S. No. 164 in Register No. 19. On 28/07/2009 all the above exhibits and sample seals were deposited in FSL Rohini through Constable L. Bhargav vide RC No. 50/21/09. All the above exhibits were received back from FSL along with FSL result on 11/05/2010. The FSL result was handed over to the IO SI Kamal Singh for filing in the court on the same day. He has brought register No. 19, the extract of the above entries are Ex. PW4/A. (Original seen and returned). He has also brought road certificate register of the year, 10 of 93 11 FIR No. 207/09 PS - Aman Vihar 2009 and the copy of RC No. 50/21/09 is Ex. PW4/B. (Original seen and returned). The copy of acknowledgment of the case property and the FSL officials deposited with him by Constable L. Bhargav is Ex. PW4/C (Original seen and returned).
PW5 Smt. Kamlesh, who deposed that prosecutrix (name withheld) is her sisterinlaw (Nanad). On 14/06/2009 her Nanad prosecutrix (name withheld) had gone to the factory as the owner of the factory Hari Ram called her for giving her balance wages. After coming from the factory prosecutrix (name withheld) was not taking any food in her rented accommodation which she (PW5) came to know from her (prosecutrix) husband as they were living near to her rented house. She went in the house of her Nanad/prosecutrix (name withheld) and inquired from her about the reason of not taking food. After persuasion her Nanad/prosecutrix (name withheld) told her that on 14/06/2009 when she had gone for collecting her balance wages in the factory both her employer Hari Ram and Pintoo who was also working previously with prosecutrix (name withheld) had committed rape upon her. In order to save herself she also fought with them as a result of which she 11 of 93 12 FIR No. 207/09 PS - Aman Vihar had suffered abrasions on her left eye and on her hand and was also told her (PW5) that both the accused threatened her (prosecutrix) that if she disclose the fact of rape to anybody she would be killed by them. Her Nanad/prosecutrix (name withheld) told her the above fact on 17/06/2009 she had also stated that she had not disclosed the fact of rape to her husband because of threatening given by both the accused. On her (PW5) informing to the husband of her Nanad/prosecutrix (name withheld), she along with husband of prosecutrix (name withheld) and prosecutrix (name withheld) went to PS Aman Vihar. Prosecutrix (name withheld) was produced before the SHO and after inquiry in detail prosecutrix (name withheld) was got medically examined under the protection of one lady Constable from SGM Hospital.
PW6 Constable L. Bhargav who deposed that on 28/07/2009 he was posted at Police Station Aman Vihar. On that day, on the direction of the IO of this case he took from MHC(M) HC Joginder the exhibits of this case in sealed condition vide RC No. 50/21/09 and deposited the same in the office of FSL Rohini. He also took the acknowledgment from the FSL officials and handed over to 12 of 93 13 FIR No. 207/09 PS - Aman Vihar MHC(M) after returning from the office of FSL. So long as the sealed parcels remained in his possession it was not tempered by any one.
PW7 Constable Rajesh, who deposed that on 18/06/2009 as per the direction of SI Kamal Singh, he took the accused Suresh to SGM Hospital for his medical examination. After medical examination the concerned Doctor has given four sealed pullandas and a sample seal sealed with the seal of SGMH Govt. of NCT of Delhi which he had handed over to the IO SI Kamal Singh at the police station. SI Kamal Singh took the pullalndas into possession vide memo Ex.PW7/A signed by him at point 'A'. Accused Suresh is present in the Court (correctly identified).
PW8 Sh. Sudhanshu Kaushik, Learned MM, who deposed that on 20/06/2009 he was working as duty Magistrate District Court Rohini. On that day, an application was assigned to him for recording the statement of prosecutrix (name withheld) u/s 164 Cr.P.C. Prosecutrix was got identified from IO SI Kamal Singh Some preliminary questions were put to the prosecutrix and after being 13 of 93 14 FIR No. 207/09 PS - Aman Vihar satisfied her voluntariness and competency he recorded the statement of prosecutrix (name withheld) truly and correctly. Statement of the prosecutrix is Ex. PW3/B signed by him at points 'B', 'C' & 'D' and has also be thumbed impressed by the prosecutrix at points 'X1', 'X2' and 'A'. The copy of the statement was also supplied to the IO vide his endorsement at Point A on the application of the IO Ex. PW 8/A. The proceedings were kept under sealed envelope and were sent to the concerned Court.
PW9 Dr. Parvinder, SR Gynae, SGM Hospital, Mangol Puri, Delhi who deposed that she is deputed on behalf of Dr. Richa by the administrative department. She knows the handwriting and signature of Dr. Richa as she has seen her writing and signing in usual course of her duties in the Hospital during her tenure. Now she has left the Hospital and her whereabouts are not known to her. On 17/06/2009 at about 6:00 p.m. one patient/prosecutrix (name withheld) W/o Sh. Pankaj was brought by W/Constable Pushpa for medical examination. After preliminary examination she was referred to SR Gynae for further examination. Dr. Richa the then SR Gynae has examined the patient and 14 of 93 15 FIR No. 207/09 PS - Aman Vihar her gynaecological examination is from Portion 'A' to 'A1' on MLC Ex. PW9/A signed by Dr. Richa at Point 'A'.
PW10 Constable Mahesh Kumar, who deposed that on 17/06/2009, he was posted at PS Aman Vihar and was performing his duties as a DD Writer. On that day at about 4:30 p.m. complainant (name withheld) came to PS and she told that Hari Ram and Pintu had committed wrong act (Galat Kaam) upon her. He (PW10) made the DD No. 39B in this regard. He has brought the original of the same. Copy of DD No. 39B is Ex. PW10/A (OSR).
PW11 Constable (Retd.) Pushpa Rani, who deposed that on 17/06/2009 she was posted at PS Aman Vihar as Constable Home Guard. On that day, she alongwith HC Kulbir took the prosecutrix to SGM Hospital where she got conducted the medical examination of the prosecutrix. After medical examination Doctor handed over eight pullindas with the seal of SGMH Govt. of NCT, Delhi and one sample seal to her. Thereafter, they came back to PS Aman Vihar and the said sealed pullindas were handed over to SI Kamal Singh and same were 15 of 93 16 FIR No. 207/09 PS - Aman Vihar taken into possession vide seizure memo Ex. PW11/A, signed by her at point 'A'. Her statement was recorded by the IO.
PW12 Dr. Manoj Dhingra, CMO Mortuary, SGM Hospital, Mangol Puri, Delhi who deposed that he has been deputed by the MS of the Hospital to depose on behalf of Dr. Naveen and Dr. Ish Kumar who have since left the services of SGM Hospital and their present whereabouts are not available in the Hospital. He is acquainted with the handwriting and signatures of Dr. Naveen as he has seen him signing and writing during the official course of the duties. He has seen the MLC No. 7672 of prosecutrix (name withheld) W/o Pankaj, 28 years old female, MLC was prepared by Dr. Naveen which is in his handwriting i.e. already exhibited as Ex. PW9/A wherein Dr. Naveen's signature is at point B. He has also seen the MLC No. 7632 and 7633, both MLCs in respect of Hari Ram S/o Ranjeet, 35 years old male and Pintu @ Suresh S/o Ram Sawaroop, aged about 22 years, male both MLCs are made on 18/06/2009 by Dr. Ish Kumar. He identify the signatures of Dr. Ish Kumar at point A. The MLC No. 7632 is Ex. PW12/A & MLC 7633 is Ex. PW12/B. There were (was) nothing to suggest that the persons are 16 of 93 17 FIR No. 207/09 PS - Aman Vihar not capable for the act of sexual intercourse.
PW13 SI Kamal Singh is the Investigating Officer (IO) who deposed that on 17/06/2009, he was posted as Sub Inspector in PS Aman Vihar. On that day, he received DD No. 39B. Complainant/prosecutrix (name withheld) met him in the PS. Thereafter, he alongwith Lady/Constable Pushpa, HC Kuldeep took prosecutrix (name withheld) to SGMH where she was medically examined. After medical examination, Doctor handed over the sealed pullinda containing the exhibits which he seized vide memo Ex. PW11/A , bearing his signature at point 'B'. He recorded statement of prosecutrix (name withheld) which is already exhibited as Ex. PW3/A and he attested her thumb impression at point A and bearing his signature at point 'B'. He prepared rukka Ex. PW13/A, bearing his signature at point 'A'. The rukka was handed over to HC Kuldeep for getting the FIR registered. He got the FIR registered and came at the Hospital and handed over to him the copy of FIR and original rukka. Thereafter, he alongwith complainant/prosecutrix (name withheld), Lady/Constable Pushpa and HC Kuldeep reached at the spot i.e. D108, Inder (Indra) Enclave, Phase 17 of 93 18 FIR No. 207/09 PS - Aman Vihar II and from there at the instance of the complainant, apprehended the accused Hari Ram, present in the Court. He was interrogated and arrested vide arrest memo Ex. PW1/A, his personal search was conducted vide memo Ex. PW1/C, he made disclosure statement Ex. PW1/E, bearing his signature at point 'X'. He prepared the site plan Ex. PW13/B, bearing his signature at point 'A' at the instance of the complainant. Thereafter, they reached at D101, Inder Enclave II, and from there accused Suresh @ Pintu, present in the Court was apprehended at the instance of the complainant. He was interrogated and arrested vide arrest memo Ex. PW1/B, his personal search was conducted vide memo Ex. PW1/D, he made disclosure statement Ex. PW1/F, bearing his signature at point 'X'. Thereafter, both accused has pointed out the place of occurrence i.e. House No. D 108, Inder (Indra) Enclave II vide pointing out memo Ex. PW1/G, bearing his signature at point 'X'. Complainant was set free. Thereafter, they came back to PS. Accused Hari Ram and Suresh @ Pintu were sent to SGMH through Constable Narender and Constable Rajesh for their medical examination. After medical examination they came back at the PS and handed over to him the pullindas containing the exhibits which he seized vide memo Ex.
18 of 93 19 FIR No. 207/09 PS - Aman Vihar PW13/C and Ex. PW7/A, bearing his signature at point 'X'. In the morning on 18/06/2009, accused were produced in the Court and were sent to JC. He moved an application Ex. PW13/D, bearing his signature at point 'A' for getting recorded statement of prosecutrix u/s 164 Cr.P.C. but the same was adjourned for 20/06/2009 and the prosecutrix was sent to Nari Niketan. On 20/06/2009, statement of prosecutrix (name withheld) was recorded and thereafter he obtained the copy of the same vide his application Ex. PW8/A, bearing his signature at point 'X'. On 28/07/2009, the exhibits were sent to FSL through Constable L. Bhargav and thereafter he deposited the receipt with the MHC(M). He recorded their statements. Both the accused are present in the Court (correctly identified). After completing the investigation, challan was prepared and filed in the Court. Later on FSL was collected and filed in the Court.
PW14 - Ms. Shashi Bala, Senior Scientific Officer, Biology, FSL, Rohini, Delhi, who proved the biological and serological reports Ex. 14/A and Ex. 14/B respectively signed by her at points 'A'.
The testimonies of the prosecution witnesses shall be dealt 19 of 93 20 FIR No. 207/09 PS - Aman Vihar with in detail during the course of appreciation of evidence.
6. Statements of accused Hari Ram and Suresh @ Pintu were recorded u/s 313 Cr.P.C. wherein they pleaded innocence and false implication. Accused did not opt to lead any defence evidence.
7. Learned Counsel for the accused submitted that the prosecution examined the prosecutrix as PW3 and there are so many contradictions in her evidence recorded before the court. She was cross examined and in her crossexamination, she stated that she made the physical relation on 14/06/2009 of her own free consent with accused Pinto. In her examinationinchief she stated that accused Hari Ram has not done anything with her. In her statement recorded u/s 164 Cr.P.C. Ex. PW3/B PW3 Prosecutrix has stated that "it is the matter of dated 14/06/2009 I am working in a shoes thread manufacturing factory. Of my own willingness I had made the physical relation with Pintoo. Hari Ram had done nothing with me. He is innocent. At the time of my making physical relation with Pintoo my husband had seen me for this reason I had made a complaint to the police. I have nothing more to 20 of 93 21 FIR No. 207/09 PS - Aman Vihar say". Learned Counsel for the accused submitted that it clearly shows that the prosecutrix of her own consent had made the physical relations with the accused Pintoo on 14/06/2009. The prosecutrix is a married lady aged about 28 years and she has children and matured to take decision on her willingness. Learned Counsel for the accused further submitted that during her cross examination by Learned Addl. PP for State, PW3 prosecutrix has stated that : "I have not stated to the police that I was made to wait in a room of the contractor by accused persons and accused Pinto raped me and thereafter, Hari Ram also committed rape upon me in the same room". Further, the prosecutrix stated that she was not threatened by the accused persons that "in case I disclosed about the rape to anybody they will kill me". I have not stated to the police that, "when Suresh @ Pintoo has committed rape on me Hari Ram holded (hold) my hand and when I started crying he has get (shut) my mouth and in this way both have committed rape in the factory after bolting the door from inside."
Learned Counsel for the accused further submitted that the Police seized one underwear, one peticot, one saree and one blouse are 21 of 93 22 FIR No. 207/09 PS - Aman Vihar Ex. P1 to P4 and one torn underwear, one torn salwar, one torn lady shirt, one torn brazier and one chunni. Same are Ex. P5 to P9. He submitted that no semen was found present and two clothes were not used at the time on the date of incident which falsifies the case of the prosecutrix. He further submitted that accused persons were not arrested in the manner as stated by the prosecution which creates doubt in the testimony of the prosecution witnesses. He further submitted that there are material contradictions in her age and the witnesses have told a lie before the court regarding her age. He further submitted that PW3 prosecutrix herself stated the facts to her Bhabhi on the same date as per the statement given to the NGO while PW5 Ms. Kamlesh, her Bhabhi has stated that the prosecutrix stated to her on 17/06/2009. Learned Counsel for the accused submitted that it clearly shows that as an after thought the accused have been falsely implicated in the case. Learned Counsel for the accused further submitted that there is no anyone ingredients available in the prosecution evidence which stand constantly that the prosecutrix has been raped by the accused persons. As per MLC no any internal or external injuries sustained by the prosecutrix in the incident dated 14/06/2009. Learned Counsel for the accused further 22 of 93 23 FIR No. 207/09 PS - Aman Vihar submitted that the doctor did not find any mark on the prosecutrix. There was neither bruise nor an abrasion on her person, which shows that the prosecutrix did not resist the accused in his attempt to ravish her and the prosecutrix of her own willingness visited the factory on 14/06/2009, hence no any offences under section 342/376/34 IPC were committed upon the prosecutrix. Learned Counsel for the accused further submitted that the rape was alleged to have been committed in a Residential Area, where the factory was running and adjacent to the premises locality was in existence. Neither the prosecutrix raised any alarm nor cried. It shows that no such rape has been committed upon the prosecutrix. Nor she tried to escape from the clutches of accused Hari Ram, hence no offences committed by the accused persons u/s 342/376/34 IPC on dated 14/06/2013. Learned Counsel for the accused further submitted that the prosecutrix at about 6:30 p.m. visited the factory after getting a phone call from the accused as per the allegation, but the prosecutrix did not refuse to visit at that time when all other workers were not available at factory because of Sunday and it was well known to the prosecutrix and she could have gone on the next working day. Learned Counsel for the accused further submitted that there is 23 of 93 24 FIR No. 207/09 PS - Aman Vihar delay in lodging the FIR which is fatal to the prosecution. As per the prosecution the occurrence is of 14/06/2006, whereas the FIR had been lodged on 17/06/2009. Learned Counsel for the accused prayed for the acquittal of both the accused on all the charges levelled against them. Learned Counsel for the accused referred to the cases and are reported as 'Bakhtaur Singh @ Kaura Vs. State of Punjab' 2006 (3) RCR (Criminal) 642, 'Tameezuddin @ Tammu Vs. State of (NCT) of Delhi', 2009 (4) JCC 2809, 'Mohan Singh Vs. State of Haryana' 2004 (4) RCR (Criminal) 660, 'Rajbir @ Fauji Vs. State of Haryana' 2004(4) RCR (Criminal) 436, 'Mohinder Singh Vs. State of Haryana' 2004 (4) RCR (Criminal) 1005, 'Dilip and Anr. Vs. State of Madhya Pradesh' AIR 2001 SC 3049, 'Sudhansu Sekhar Sahoo Vs. State of Orissa' AIR 2003, SC 2136 and 'Ram Narain Singh Vs. The State of Punjab' AIR 1975, SC 1727.
8. While the Learned Addl. PP for the State, on the other hand, submitted that the testimonies of the prosecution witnesses are cogent and consistent and the contradictions and discrepancies as pointed out are minor and not the material one's and do not affect the credibility of the witnesses and the prosecution has proved its case beyond reasonable 24 of 93 25 FIR No. 207/09 PS - Aman Vihar doubt.
9. I have heard Ms. Purnima Gupta, Learned Addl. PP for the State and Sh. R. K. Padhi, Learned Counsel for the accused and have also carefully perused the entire record.
10. The charge for the offences punishable u/s 366 r/w section 34 IPC, 342 r/w section 34 IPC and 376 (2)(g) IPC against the accused Hari Ram and Suresh @ Pintu is that on 14/06/2009 at about 6:00 p.m. they both in furtherance of their common intention, by deceitful means induced the prosecutrix (name withheld) W/o Sh. Pankaj to go to the house of Hari Ram situated at D - Block, Indra Enclave, Phase - II, Delhi with intent that she may be forced for illicit intercourse and that on the abovesaid date, time and place both of them in furtherance of their common intention wrongfully confined the prosecutrix (name withheld) and that on the abovesaid date, time and place both of them committed rape with the prosecutrix (name withheld).
11. It is to be mentioned that as a matter of prudence, in order to 25 of 93 26 FIR No. 207/09 PS - Aman Vihar 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. PW3 - prosecutrix at the time of recording of her statement in the Court on 28/01/2012 has stated her age about 22 years.
As the date of alleged incident is 14/06/2009 and prosecutrix has stated her age about 22 years at the time of recording of her statement in the Court on 28/01/2012, on simple arithmetical calculation, the age of prosecutrix comes to 19 years 06 months and 14 days as on the date of incident on 14/06/2009.
Nor any evidence to the contrary has been produced or proved on the record on behalf of the accused.
In view of above and in the circumstances, it stands proved on record that PW3 prosecutrix was aged 19 years 06 months and 14 days as on the date of alleged incident on 14/06/2009.
26 of 93 27 FIR No. 207/09 PS - Aman Vihar
13. Learned Counsel for the accused submitted that there are material contradictions in the age of the prosecutrix and witnesses have told a lie before the Court regarding her age.
I have carefully perused and analysed the evidence on record.
It is not made clear by the Learned Counsel for the accused as to what he intends to convey by raising the said plea and as to what benefit he intends to reap by raising the said plea.
Whatever evidence relating to the age of PW3 - prosecutrix on the record has been discussed and analysed hereinabove under the heading "Age of the prosecutrix" and at the cost of repetition, it stands proved on the record that PW3 - prosecutrix was aged 19 years, 06 months and 14 days as on the date of alleged incident on 14/06/2009. Undisputably, no evidence to the contrary has been produced or proved on the record on behalf of the accused.
In the circumstances, there is no substance in the plea so 27 of 93 28 FIR No. 207/09 PS - Aman Vihar raised by the Learned Counsel for the accused. MEDICAL EVIDENCE OF THE PROSECUTRIX
14. PW12 - Dr. Manoj Dhingra, CMO Mortuary, SGM Hospital, Mangol Puri, Delhi has deposed that he has been deputed by the MS of the Hospital to depose on behalf of Dr. Naveen and Dr. Ish Kumar who have since left the services of SGM Hospital and their present whereabouts are not available in the Hospital. He is acquainted with the handwriting and signatures of Dr. Naveen as he has seen him signing and writing during the official course of the duties. He has seen the MLC No. 7672 of prosecutrix (name withheld) W/o Pankaj, 28 years old female, MLC was prepared by Dr. Naveen which is in his handwriting i.e. already exhibited as Ex. PW9/A wherein Dr. Naveen's signature is at point B. PW9 Dr. Parvinder, SR Gynae, SGM Hospital, Mangol Puri, Delhi has deposed that she is deputed on behalf of Dr. Richa by the administrative department. She knows the handwriting and signature of Dr. Richa as she has seen her writing and signing in usual course of her 28 of 93 29 FIR No. 207/09 PS - Aman Vihar duties in the Hospital during her tenure. Now she has left the Hospital and her whereabouts are not known to her. On 17/06/2009 at about 6:00 p.m. one patient/prosecutrix (name withheld) W/o Sh. Pankaj was brought by W/Constable Pushpa for medical examination. After preliminary examination she was referred to SR Gynae for further examination. Dr. Richa the then SR Gynae has examined the patient and her gynaecological examination is from Portion 'A' to 'A1' on MLC Ex. PW9/A signed by Dr. Richa at Point 'A'.
Despite grant of opportunity PW9 - Dr. Parvinder and PW12 - Dr. Manoj Dhingra were not crossexamined on behalf of accused.
In the circumstances, the medical and gynaecological examination vide MLC Ex. PW9/A and from portion 'A' to 'A1' on the MLC Ex. PW9/A of PW3 prosecutrix stands proved on the record.
VIRILITY OF THE ACCUSED
15. PW12 Dr. Manoj Dhingra, CMO Mortuary, SGM 29 of 93 30 FIR No. 207/09 PS - Aman Vihar Hospital, Mangol Puri, Delhi has deposed that he has seen the MLC No. 7632 and 7633, both MLCs in respect of Hari Ram S/o Ranjeet, 35 years old male and Pintu @ Suresh S/o Ram Sawaroop, aged about 22 years, male both MLCs are made on 18/06/2009 by Dr. Ish Kumar. He identify the signatures of Dr. Ish Kumar at point 'A'. The MLC No. 7632 is Ex. PW12/A & MLC 7633 is Ex. PW12/B. There were (was) nothing to suggest that the persons are not capable for the act of sexual intercourse.
Despite grant of opportunity PW12 - Dr. Manoj Dhingra was not crossexamined on behalf of accused.
In the circumstances, it stands proved on the record that both the accused Hari Ram and Suresh @ Pintu were capable for the act of sexual intercourse.
BIOLOGICAL AND SEROLOGICAL EVIDENCE
16. PW14 - Ms. Shashi Bala, Senior Scientific Officer, Biology, FSL, Rohini, Delhi has proved the biological and serological reports Ex. 14/A and Ex. 14/B respectively signed by her at points 'A'.
As per biological report Ex. 14/A the description of 30 of 93 31 FIR No. 207/09 PS - Aman Vihar 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 "SGMH GOVT OF NCT DELHI" containing exhibits '1a', '1b', '1c' & '1d' described as undergarments of prosecutrix. Exhibit '1a' : One underwear having whitish stains.
Exhibit '1b' : One petticoat. Exhibit '1c' : One saree. Exhibit '1d' : One blouse. Parcel '2' : One sealed cloth parcel sealed with the
seal of "SGMH GOVT OF NCT DELHI" containing exhibits '2a', '2b', '2c', '2d' & '2e', kept in a polythene described as undergarments and clothes of sexual time of prosecutrix.
Exhibit '2a' : One torn underwear.
Exhibit '2b' : One torn salwar.
Exhibit '2c' : one torn lady's shirt.
Exhibit '2d' : One torn brassier.
Exhibit '2e' : One chunni.
Parcel '3' : One sealed cloth parcel sealed with the
seal of "SGMH GOVT OF NCT DELHI" containing exhibits '3a' &
'1b'.
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Exhibits '3a' : Two microslides having faint whitish smear
& '3b' described as vulval semen slide of prosecutrix.
Parcel '4' : One sealed cloth parcel sealed with the
seal of "SGMH GOVT OF NCT DELHI" containing exhibit '4', kept in a plastic tube.
Exhibit '4' : Cotton wool swab on a wooden stick described as vaginal swab of prosecutrix.
Parcel '5' : One sealed cloth parcel sealed with the seal of "SGMH GOVT OF NCT DELHI" containing exhibit '5', kept in a plastic tube.
Exhibit '5' : Dark brown liquid described as blood sample of prosecutrix.
Parcel '6' : One sealed cloth parcel sealed with the seal of "SGMH GOVT OF NCT DELHI" containing exhibit '6'. Exhibit '6' : A few strands of very small black hair described as pubic hair of prosecutrix.
Parcel '7' : One sealed cloth parcel sealed with the seal of "SGMH GOVT OF NCT DELHI" containing exhibit '7'. Exhibit '7' : Small nail clippings described as nail clippings of prosecutrix.
32 of 93 33 FIR No. 207/09 PS - Aman Vihar Parcel '8' : One sealed cloth parcel sealed with the seal of "SGMH GOVT OF NCT DELHI" containing exhibit '8', kept in a test tube.
Exhibit '8' : Cotton wool swab on a wooden stick described as perinal swab of prosecutrix.
Parcel '9' : One sealed cloth parcel sealed with the seal of "SGMH GOVT OF NCT DELHI" containing exhibit '9'. Exhibit '9' : One track suit lower described as pant of accused Suresh @ Pintoo.
Parcel '10' : One sealed cloth parcel sealed with the seal of "SGMH GOVT OF NCT DELHI" containing exhibit '10'. Exhibit '10' : A bunch of black strands of hair described as pubic hair of accused Suresh @ Pintoo.
Parcel '11' : One sealed cloth parcel sealed with the seal of "SGMH GOVT OF NCT DELHI" containing exhibit '11', kept in a test tube.
Exhibit '11' : Dark brown liquid described as blood sample of accused Suresh @ Pintoo.
Parcel '12' : One sealed cloth parcel sealed with the seal of "SGMH GOVT OF NCT DELHI" containing exhibit '12', kept in a test tube.
33 of 93 34 FIR No. 207/09 PS - Aman Vihar Exhibit '12' : Cotton wool swab on a plastic stick. Parcel '13' : One sealed cloth parcel sealed with the seal of "SGMH GOVT OF NCT DELHI" containing exhibit '13'. Exhibit '13' : Cotton wool swab on a plastic stick. Parcel '14' : One sealed cloth parcel sealed with the seal of "SGMH GOVT OF NCT DELHI" containing exhibit '14'. Exhibit '14' : A bunch of black strands of hair described as pubic hair of accused 'Hare (Hari) Ram'.
Parcel '15' : One sealed cloth parcel sealed with the seal of "SGMH GOVT OF NCT DELHI" containing exhibit '15', kept in a test tube.
Exhibit '15' : Dark brown liquid described as blood sample of accused 'Hare (Hari) Ram'.
Parcel '16' : One sealed cloth parcel sealed with the seal of "SGMH GOVT OF NCT DELHI" containing exhibit '16', kept in a test tube.
Exhibit '16' : Cotton wool swab on a wooden stick.
RESULT OF ANALYSIS 34 of 93 35 FIR No. 207/09 PS - Aman Vihar
1. Human semen was detected on exhibits '1a' & '2a'.
2. Blood was detected on exhibits '1b', '1c', '5', '11' & '15'.
3. Semen couldn't be detected on exhibits '1b', '1c', '1d', '2b', '2c', '2d', '2e', '3a', '3b', '4', '6', '7', '8', '9', '10', '12', '13', '14' & '16'.
4. Blood couldn't be detected on exhibits '1a', '1d', '2a', '2b', '2c', '2d', '2e', '4', '6', '7', '8', '9', '10', '12', '13', '14' & '16'.
5. Report of serological analysis in original is attached herewith. NOTE : Remnants of the exhibits have been sealed with the seal of 'SB FSL DELHI'.
The serological report Ex. 14/B reads as under: Exhibits Species of origin ABO Grouping/Remarks Semen stains :
'1a' Underwear No reaction '2a' Underwear No reaction Blood stains : '1b' Petticoat Human Inconclusive result '1c' Saree Human No reaction '5' Blood sample Sample putrefied hence no opinion '1l' Blood sample Sample putrefied hence no opinion '15' Blood sample Sample putrefied hence no opinion
As per the biological report Ex. PW14/A, with regard to 35 of 93 36 FIR No. 207/09 PS - Aman Vihar the description of the articles contained in the parcels, it is noticed that Parcel Nos. 1 to 8 belong to the prosecutrix which were seized vide seizure memo Ex. PW11/A dated 17/06/2009, Parcel Nos. 9 to 11 belong to accused Suresh @ Pintoo which were seized vide seizure memo Ex. 7/A dated 18/06/2009 and Parcel Nos. 13 to 16 belong to accused Hari Ram which were seized vide seizure memo Ex. PW13/C dated 18/06/2009.
On careful perusal and analysis of the biological evidence on record, it clearly shows that Human Semen was detected on exhibit '1a' (underwear of the prosecutrix) and exhibit '2a' (torn underwear of sexual time of prosecutrix), blood was detected on exhibit '1b' (Petticoat of the prosecutrix), exhibit '1c' (Saree of the prosecutrix, exhibit '5' (blood sample of prosecutrix), exhibit '11' (Blood sample of accused Suresh @ Pintoo) & exhibit '15' (Blood sample of accused Hari Ram); blood could not be detected on exhibit '1a' (Underwear of the prosecutrix), exhibit '2b' (Torn salwar of the prosecutrix, exhibit '2c' (Torn lady's shirt of the prosecutrix), exhibit '2d' (Torn brassier of the 36 of 93 37 FIR No. 207/09 PS - Aman Vihar prosecutrix), exhibit '2e' (Chunni of the prosecutrix), exhibit '4' (Vaginal swab of the prosecutrix), exhibit '6' (pubic hair of the prosecutrix), exhibit '7' (nail clippings of the prosecutrix), exhibit '8' (Perinal swab of the prosecutrix, exhibit '9' (Pant of accused Suresh @ Pintoo), exhibit '10' (Pubic hair of accused Suresh @ Pintoo), exhibit '12' (Cotton wool swab on a plastic stick of accused Suresh @ Pintoo), exhibit '13' (underwear described as pant of accused Hari Ram), exhibit '14' (Pubic hair of accused Hari Ram) & exhibit '16' (Cotton wool swab on a wooden stick of accused Hari Ram); and semen could not be detected on exhibit '1b' (Petticoat of the prosecutrix), exhibit '1c' (Saree of the prosecutrix), exhibit '1d' (Blouse of the prosecutrix), exhibit '2b' (Torn salwar of the prosecutrix), exhibit '2c' (torn lady's shirt of the prosecutrix), exhibit '2d' (torn brassier of the prosecutrix), exhibit '2e' (Chunni of the prosecutrix), exhibit '3a' & exhibit '3b' (Vulval semen slides of prosecutrix), exhibit '4' (Vaginal swab of the prosecutrix), exhibit '6' (Pubic hair of the prosecutrix), exhibit '7' (Nail clippings of the prosecutrix), exhibit '8' (Perinal swab of the prosecutrix), exhibit '9' (Pant of accused Suresh @ Pintoo), exhibit '10' (Pubic hair of accused Suresh @ Pintoo), exhibit '12' (Cotton wool swab on a plastic stick of accused 37 of 93 38 FIR No. 207/09 PS - Aman Vihar Suresh @ Pintoo), exhibit '13' (Underwear described as pant of accused Hari Ram), exhibit '14' (Pubic Hair of accused Hari Ram) & exhibit '16' (Cotton wool swab on a wooden stick of accused Hari Ram).
On a conjoint reading of the medical and gynaecological examination vide MLC Ex. PW9/A and from portion 'A' to 'A1' on the MLC Ex. PW9/A of the prosecutrix together with the MLC of accused Hari Ram Ex. PW12/A and MLC of accused Suresh @ Pintoo Ex. PW12/B in the light of the biological and serological evidence detailed hereinabove, it clearly indicates the taking place of sexual intercourse activity.
In the circumstances, it stands clearly established on the record that sexual intercourse activity has taken place in the instant case.
As per the biological report Ex. PW14/A, prosecution has discharged its initial burden of proving the presence of Human semen on exhibit '1a' (underwear of the prosecutrix seized vide seizure memo Ex. PW11/A dated 17/06/2009) and exhibit '2a' (torn underwear of sexual time of prosecutrix seized vide seizure memo Ex.
38 of 93 39 FIR No. 207/09 PS - Aman Vihar 11/A dated 17/06/2009). Accused were under an obligation to explain how and under what circumstances, the Human semen came to be present on the said exhibits '1a' and '2a' as detailed hereinabove. The absence of such an explanation both in the section 313 Cr.P.C. statements of the accused Hari Ram and Suresh @ Pintoo and their omission to lead any evidence in this regard and their complete denial becomes an additional link in the prosecution case.
17. It is settled legal proposition that the dependable part of the evidence of a hostile witness can be relied on.
In case of "Rameshbhai Mohanbhai & Ors. Vs. State of Gujrat" 2010 XI AD (S.C.) 53, the Hon'ble Supreme Court held that : "It is settled legal proposition that the evidence of a prosecution witness cannot be rejected in toto merely because the prosecution chose to treat him as hostile and crossexamined him. The evidence of such witnesses cannot be treated as effaced or washed off the record altogether but the same can be accepted to the extent that their version is found to be dependable on a careful scrutiny thereof. [Vide Bhagwan Singh Vs. State of Haryana 1976 SCC (Cri) 7, Rabindra Kumar Dey Vs. State of Orissa 1976 SCC (Cri) 566, Syad Akbar Vs. State of Karnataka 1980 SCC (Cri) 59 and Khujji Vs. State of M.P. 39 of 93 40 FIR No. 207/09 PS - Aman Vihar 1991 SCC (Cri) 916] In State of U.P. Vs. Ramesh Prasad Misra 1996 SCC (Cri) 1278, this Court held that evidence of a hostile witness would not be totally rejected if spoken in favour of the prosecution or the accused but required to the subjected to close the prosecution or defence can be relied upon. A similar view has been reiterated by this Court in Balu Sonba Shinde Vs. State of Maharashtra 2002 VII AD (S.C.) 249 = 2003 SCC (Cri) 112, Gagan Kanojia Vs. State of Punjab (2008) 1 SCC (Cri) 109, Radha Mohan Singh Vs. State of U.P. 2006 I AD (S.C.) 417 = (2006) 1 SCC (Cri) 661, Sarvesh Narain Shukla Vs. Daroga Singh (2009) 1 SCC (Cri) 188 and Subbu Singh Vs. State (2009) 2 SCC (Cri) 1106."
In a criminal prosecution when a witness is crossexamined and contradicted with the leave of the Court, by the party calling him, his evidence cannot, as a matter of law, be treated as washed off the record altogether. It is for the Judge to consider the fact in each case whether as a result of such examination and contradiction, the witness stands thoroughly discreted or can still be believed in regard to a part of his testimony. If the Judge finds that in the process, the credit of the witness has not been completely shaken, he may, after reading and considering the evidence of the witness, as a whole, with due caution and care, accept, in the light of the other evidence on the record, that part of his testimony which he finds to be creditworthy and act upon it. If in a given case, the whole of the testimony of the witness is impugned and in the process, the witness stands squarely and totally discredited the Judge should, as a matter of prudence, discard his evidence in toto ; (Ref. Pandappa Hanumappa Nanamar V. State of Karnataka, (1997) 3 40 of 93 41 FIR No. 207/09 PS - Aman Vihar Supreme Today 63).
Evidence of a prosecution witness cannot be rejected in India merely because the prosecution chose to treat him as hostile and crossexamine him. Evidence of such witness cannot be treated as effaced or washed off the record altogether but the same can be accepted to the extent his version is found to be dependable or careful scrutiny thereof ; (Ref. Prithi Vs. State of Haryana, (2010) 8 SCC 536).
The fact that witnesses have been declared hostile does not result in automatic rejection of their evidence. Even the evidence of a hostile witness if it finds corroboration from the facts of the case may be taken into account while judging the guilt of an accused ; (Ref. Lalla Srinivasa Rao Vs. State of Andhra Pradesh, AIR 2004 SC 1720).
In case 'Himanshu @ Chintu Vs. State (NCT of Delhi)', (2011) 2 SCC 36, the Hon'ble Supreme Court held that the dependable part of the evidence of a hostile witness can be relied on. Thus it is the duty of the Court to separate the grain from the chaff and the maxim falsus in uno falsus in omnibus, has no application in India vide 'Nisar Alli Vs. The State of Uttar Pradesh', AIR 1957 SC 366.
18. Now let the testimonies of PW3 Prosecutrix and PW5 -
41 of 93 42 FIR No. 207/09 PS - Aman Vihar Kamlesh be perused and analysed.
PW3 prosecutrix, in her examinationinchief has deposed which is reproduced and reads as under : "In the year, 2009, I was residing in Delhi but I do not know the address. I was working in the factory of Manoj, manufacturing threads etc. I worked in the factory only for about one month. Thereafter, I left the job. In the same factory Pintoo was also working at that time. The factory premises in which Manoj was manufacturing threads belongs to Hari Ram.
In the year, 2009 I do not remember the month but it was of fourteen day I went to the factory of Manoj for taking my wages of one month which I had worked in his factory Pintoo has committed galat kaam with me. Galat kaam I mean rape. I did not disclose the said fact to my husband as my husband would have beaten me, therefore, later on I disclosed the said fact to my Bhabhi Kamlesh. Kamlesh took me to the Police Station. Police had got me medically examined. Police had also recorded my statement. Statement is Ex. PW3/A and I have put thumb mark at Point 'A' on my statement. Police have also got recorded my statement u/s 164 Cr.P.C. before the Metropolitan Magistrate, Rohini, Delhi.
At this stage, one sealed envelope sealed with the seal of 'SK' is opened from which a statement u/s 164 Cr.P.C. is taken out which is shown to the witness, who stated that this is the statement which I have made. My statement is Ex. PW3/B and bears my thumb mark at point 'A'.
At the time when Pintoo has committed rape upon me 42 of 93 43 FIR No. 207/09 PS - Aman Vihar owner of the premises Hari Ram was also present but Hari Ram has not done anything with me. No one had seen when Pintoo was (had) committed rape upon me."
I went to the factory for taking my wages of my own. At this stage, the wooden partition is removed for the identification of the accused persons.
Both the accused Pintoo and Hari Ram are present in the Court (correctly identified).
I can identify the clothes seized at the time of my medical examination, if shown to me.
At this stage, parcel no. 1 bearing the seal of FSL is opened which containing one underwear, one petticoat, one saree and one blouse. All are shown to the witness who identified the same. Same are Ex. P1 to P4.
At this stage, Parcel No. 2 bearing the seal of FSL is opened which containing one torn underwear, one torn salwar, one torn lady shirt, one torn brazier and one chunni. All are shown to the witness who identified the same. Same are Ex. P5 to Ex. P9."
From the aforesaid narration of PW3 - prosecutrix, it is clear that in the year, 2009, she was residing in Delhi but she does not know the address. She was working in the factory of Manoj, manufacturing threads etc. She worked in the factory only for about one month. Thereafter, she left the job. In the same factory Pintoo was also 43 of 93 44 FIR No. 207/09 PS - Aman Vihar working at that time. The factory premises in which Manoj was manufacturing threads belongs to Hari Ram. In the year, 2009 she does not remember the month but it was of fourteen day she went to the factory of Manoj for taking her wages of one month which she had worked in his factory Pintoo has committed galat kaam with her. By Galat Kaam she means rape. She did not disclose the said fact to her husband and her husband would have beaten her, therefore, later on she disclosed the said fact to her Bhabhi Kamlesh. Kamlesh took her to the Police Station. Police had got her medically examined. Police had also recorded her statement. Statement is Ex. PW3/A and she had put thumb mark at point 'A' on her statement. Police have also got recorded her statement u/s 164 Cr.P.C. before the Metropolitan Magistrate, Rohini, Delhi. Her statement is Ex. PW3/B and bears her thumb mark at point 'A'. At the time when Pintoo has committed rape upon her, owner of the premises Hari Ram was also present but Hari Ram has not done anything with her. No one had seen when Pintoo was (had) committed rape upon her. She went to the factory for taking her wages of her own. She identified both the accused persons present in the Court and identified her clothes Ex. P1 to P4 and Ex. P5 to P9.
44 of 93 45 FIR No. 207/09 PS - Aman Vihar Since PW3 - prosecutrix was resiling from her previous statement made to the Police, she was crossexamined at length by the Learned Addl. PP for the State. The crossexamination as was conducted by the Learned Addl. PP for State reads as under : "I have not stated to the Police in my statement that on 14/06/2009, I went to the factory as I have received a phone from accused Pintoo that contractor was giving money and collect the money. (Confronted from portion 'A to A1' of my statement Ex. PW3/A, where it is so recorded). I have not stated to the Police that I was made to wait in a room of the contractor by accused persons and accused Pintoo raped me and thereafter, Hari Ram also committed rape upon me in the same room. (Confronted from portion 'B to B1' of my statement Ex. PW3/A, where it is so recorded). It is correct (be read as 'incorrect') that after Hari Ram had committed rape and in order escape from the clutches from Hari Ram I received abrasion below my right eye and on my right hand. I was not threatened by the accused persons that in case I disclosed about the rape to anybody they will kill me. (Confronted from portion 'C to C1' of my statement Ex. PW3/A, where it is so recorded). I have not stated to the Police that when Pintoo has committed rape on me Hari Ram holded (hold) my hand and when I started crying he has get my mouth and when Hari Ram committed rape then accused Pintoo has get my mouth and in this way both have committed rape in the factory after bolting the door from inside. (Confronted from portion 'D to D1' of my statement Ex. PW3/A, where it is so recorded). It is incorrect to suggest that I have been won over by the accused Hari Ram and that is 45 of 93 46 FIR No. 207/09 PS - Aman Vihar why I have not disclosed his name to commit rape on me with accused Pintoo in the factory. It is wrong to suggest that I was threatened not to disclose true facts against accused Hari Ram or that I am deposing in his favour in order to save him. It is wrong to suggest that accused Pintoo has committed rape forcefully and against my consent. It is wrong to suggest that I was allured by the accused to depose in his favour."
PW3 - Prosecutrix during her crossexamination by the Learned Counsel for the accused has negated the suggestion that she is deposing falsely.
PW3 - prosecutrix during her statement recorded u/s 164 Cr.P.C. Ex. PW3/B has stated which is reproduced and reads as under : "The incident is of 14/06/2009. I used to work in the chappal thread making factory. I had made physical relation with Pintoo with my own consent. He is not at fault in this (Is Mei Iska Koi Kasur Nahi Hai). Hari Ram did nothing with me. He is innocent. I was seen while making relation with Pintoo by my husband. For this reason, I had made the complaint to the Police. I do not want to say any more thing else."
The testimony of PW3 - Prosecutrix is also found to be 46 of 93 47 FIR No. 207/09 PS - Aman Vihar corroborated by the medical evidence as well as the biological and serological evidence as discussed hereinbefore.
The testimony of PW3 - Prosecutrix on material aspects is also found to be in consonance with her statement Ex. PW3/A made to the Police as well as her statement recorded u/s 164 Cr.P.C. Ex. PW3/B. The testimony of PW3 - Prosecutrix on material aspects is also found to be corroborated by PW5 - Kamlesh, to whom PW3 prosecutrix disclosed the facts relating to the crime shortly after the incident at the first available opportunity being relevant u/s 6 & 8 of the Indian Evidence Act, 1872.
PW5 - Kamlesh in her examinationinchief has deposed that : "Prosecutrix (name withheld) is my sisterinlaw (Nanad). On 14/06/2009 my Nanad prosecutrix (name withheld) had gone to the factory as the owner of the factory Hari Ram called her for giving her balance wages. After coming from the factory prosecutrix (name withheld) was not taking any food in her rented accommodation which I came to know from my husband as we were living near to her rented 47 of 93 48 FIR No. 207/09 PS - Aman Vihar house. I went in the house of my Nanad prosecutrix (name withheld) and inquired from her about the reason of not taking food. After pursuation (persuasion) my Nanad prosecutrix (name withheld) told me that on 14/06/2009 when she had gone for collecting her balance wages in the factory both her employer Hari Ram and Pintoo who was also working previously with prosecutrix (name withheld) had committed rape upon her. In order to save herself she also fought with them as a result of which she had suffered abrasions on her left eye and on her hand and was also told me that both the accused threatened her that if she disclose the fact of rape to anybody she would be killed by them. My Nanad prosecutrix (name withheld) told me the above fact on 17/06/2009 she had also stated that she had not disclosed the fact of rape to her husband because of threatening given by both the accused. On my informing to the husband of my Nanad prosecutrix (name withheld) I along with husband of prosecutrix (name withheld) and prosecutrix (name withheld) went to PS Aman Vihar. Prosecutrix (name withheld) was produced before the SHO and after inquiry in detail prosecutrix (name withheld) was got medically examined under the protection of one lady constable from SGM Hospital."
From the aforesaid narration of PW5 - Kamlesh, it is clear that prosecutrix (name withheld) is her sisterinlaw (Nanad). On 14/06/2009 her Nanad prosecutrix (name withheld) had gone to the factory as the owner of the factory Hari Ram called her for giving her balance wages. After coming from the factory prosecutrix (name 48 of 93 49 FIR No. 207/09 PS - Aman Vihar withheld) was not taking any food in her rented accommodation which she (PW5) came to know from her (prosecutrix) husband as they were living near to her rented house. She went in the house of her Nanad/prosecutrix (name withheld) and inquired from her about the reason of not taking food. After persuasion her Nanad/prosecutrix (name withheld) told her that on 14/06/2009 when she had gone for collecting her balance wages in the factory both her employer Hari Ram and Pintoo who was also working previously with prosecutrix (name withheld) had committed rape upon her. In order to save herself she also fought with them as a result of which she had suffered abrasions on her left eye and on her hand and was also told her (PW5) that both the accused threatened her (prosecutrix) that if she disclose the fact of rape to anybody she would be killed by them. Her Nanad/prosecutrix (name withheld) told her the above fact on 17/06/2009 she had also stated that she had not disclosed the fact of rape to her husband because of threatening given by both the accused. On her (PW5) informing to the husband of her Nanad/prosecutrix (name withheld), she along with husband of prosecutrix (name withheld) and prosecutrix (name withheld) went to PS Aman Vihar. Prosecutrix (name withheld) was produced 49 of 93 50 FIR No. 207/09 PS - Aman Vihar before the SHO and after inquiry in detail prosecutrix (name withheld) was got medically examined under the protection of one lady Constable from SGM Hospital.
During her crossexamination PW5 - Kamlesh has negated the suggestions that she had forced prosecutrix (name withheld) to go to the PS and to make a complaint against the accused persons or that nothing was told to her by her Nanad/prosecutrix (name withheld) as deposed or that she is deposing falsely.
Inspite of incisive crossexamination of PW5 - Kamlesh, nothing material has been brought out so as to impeach her creditworthiness. She has withstood the rigors of crossexamination without being shaken. On careful perusal and analysis and by applying the discerning scrutiny standard [Ref. Raju @ Balachandran & Ors. Vs. State of Tamil Nadu 2012 XII AD (S.C.)1] the testimony of PW5 - Kamlesh is found to be natural, clear, reliable, inspiring confidence and having a ring of truth. There is nothing in her statement to suggest that she had any animus against the accused Hari Ram and Suresh @ Pintu to 50 of 93 51 FIR No. 207/09 PS - Aman Vihar falsely implicate them in the case.
19. While analysing the testimony of PW5 - Kamlesh, her Bhabhi, as discussed hereinabove, inspite of incisive crossexamination of PW5 - Kamlesh nothing has come out in her statement which may throw even a slightest doubt on the prosecution version of the incident. Though, the suggestions by the defence to PW5 - Kamlesh that she had forced prosecutrix (name withheld) to go to the PS and to make a complaint against the accused persons or that nothing was told to her by her Nanad/prosecutrix (name withheld) as deposed 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.
20. On analysing the entire testimony of PW3 - prosecutrix, it transpires that she has described the scenario implicating accused Pintu to be the author of the crime of committal of sexual assault upon her and 51 of 93 52 FIR No. 207/09 PS - Aman Vihar exonerating accused Hari Ram, though, she specifically deposed that he (Hari Ram) was present at the time when accused Pintu committed rape upon her.
From above, prosecution has discharged its initial burden of proving the presence of accused Hari Ram at the time of the committal of the sexual assault upon the prosecutrix by accused Pintu. Accused Hari Ram was under an obligation to explain as to why and for what he was present at that time. The absence of such an explanation both in the section 313 Cr.P.C. statement of the accused Hari Ram and his omission to lead any evidence in this regard and his complete denial becomes an additional link in the prosecution case.
Further, from above prosecution has also discharged its initial burden of proving the committal of sexual assault upon the prosecutrix by accused Pintu. Accused Pintu was under an obligation to explain as to how and under what circumstances, the sexual assault was committed by him upon the prosecutrix. The absence of such an explanation both in the section 313 Cr.P.C. statement of the accused Pintu and his omission to lead any evidence in this regard and his 52 of 93 53 FIR No. 207/09 PS - Aman Vihar complete denial becomes an additional link in the prosecution case.
On analysing the testimony of PW3 - prosecutrix, it is also indicated that after the sexual assault having been committed upon her, she had disclosed the said fact to her Bhabhi Kamlesh (PW5). Thereupon, PW5 - Kamlesh took her to the Police Station. Police got prosecutrix medically examined. Police also recorded the statement of prosecutrix Ex. PW3/A bearing her thumb mark at point 'A'. Police also got recorded the statement of prosecutrix u/s 164 Cr.P.C. Ex. PW3/B which bears her thumb mark at point 'A'.
On the said facts so deposed by PW3 - prosecutrix, she was not crossexamined on behalf of the accused. For failure to do so, accused are to blame themselves and none else.
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).
53 of 93 54 FIR No. 207/09 PS - Aman Vihar It is to be noticed that PW5 - Kamlesh, Bhabhi of the prosecutrix to whom prosecutrix disclosed the facts relating to the crime, shortly after the incident, at the first available opportunity, has specifically deposed in her examinationinchief : "After persuasion my Nanad /prosecutrix (name withheld) told me that on 14/06/2009 when she had gone for collecting her balance wages in the factory both her employer Hari Ram and Pintoo who was also working previously with prosecutrix (name withheld) had committed rape upon her. In order to save herself she also fought with them as a result of which she had suffered abrasions on her left eye and on her hand and was also told me that both the accused threatened her that if she disclose the fact of rape to anybody she would be killed by them."
(Underlined by me) There is nothing in the crossexamination of PW5 - Kamlesh so as to impeach her creditworthiness.
In the circumstances even if, PW3 - prosecutrix has oscillated and made a futile attempt to implicate only accused Pintu of having committed rape upon her and exonerated accused Hari 54 of 93 55 FIR No. 207/09 PS - Aman Vihar Ram, it does not falsify the case of the prosecution as the testimony of PW5 Kamlesh, her Bhabhi as reproduced hereinabove and being relevant u/s 6 & 8 of the Indian Evidence Act, 1872, despite her (PW5 - Kamlesh) searching crossexamination has withstood the rigors of crossexamination and has clearly established on the record that both accused Pintu and Hari Ram had committed rape upon her (PW3 - prosecutrix) and had also threatened her (PW3 - prosecutrix) that she (PW3 - prosecutrix) would be killed if she disclosed the fact of rape to anybody.
In the circumstances, the improvement made by PW3 - prosecutrix during her crossexamination by the Learned Counsel for the accused that, "it is correct that I indulged in sexual act with accused Pintoo of my own free consent" does not come to the rescue of the accused. Nor it falsifies the case of the prosecution which is otherwise proved on record by clear, cogent and convincing evidence.
At the cost of repetition, since the prosecution has discharged its initial burden of proving the presence of accused Hari Ram at the time of the committal of the sexual assault upon the 55 of 93 56 FIR No. 207/09 PS - Aman Vihar prosecutrix by accused Pintu. Accused Hari Ram was under an obligation to explain as to why and for what he was present at that time. The absence of such an explanation both in the section 313 Cr.P.C. statement of the accused Hari Ram and his omission to lead any evidence in this regard and his complete denial becomes an additional link in the prosecution case.
In the circumstances, there appears to be substance in the suggestions of the Learned Addl. PP for the State, put to PW3 - prosecutrix during her crossexamination which though, she negated that she has been won over by the accused Hari Ram and that is why she has not disclosed his name to commit rape on her with accused Pintoo in the factory or that she was threatened not to disclose true facts against accused Hari Ram or that she is deposing in his favour in order to save him or that accused Pintoo has committed rape forcefully and against her consent or that she was allured by the accused to depose in his favour.
The relevant part of the crossexamination of PW3 - prosecutrix as conducted by the Learned Addl. PP for the State is 56 of 93 57 FIR No. 207/09 PS - Aman Vihar reproduced and reads as under : "It is incorrect to suggest that I have been won over by the accused Hari Ram and that is why I have not disclosed his name to commit rape on me with accused Pintoo in the factory. It is wrong to suggest that I was threatened not to disclose true facts against accused Hari Ram or that I am deposing in his favour in order to save him. It is wrong to suggest that accused Pintoo has committed rape forcefully and against my consent. It is wrong to suggest that I was allured by the accused to depose in his favour."
PW3 - prosecutrix in her statement recorded u/s 164 Cr.P.C. Ex. PW3/B has stated that, "I was seen while making relation with Pintoo by my husband. For this reason, I had made the complaint to the Police." It does not falsify the case of the prosecution in view of as to what PW3 - prosecutrix has specifically deposed in her examination inchief that, "No one had seen when Pintu was (had) committed rape upon her.
In the circumstances, nothing turns much on the theory floated by prosecutrix in her statement u/s 164 Cr.P.C. that, "she was seen while making relation with Pintoo by her husband and for this 57 of 93 58 FIR No. 207/09 PS - Aman Vihar reason she had made the complaint to the Police."
Moreover, PW3 - prosecutrix was not crossexamined on the said part of her testimony as reproduced hereinabove, on behalf of the accused. Nor she was confronted with on behalf of the accused as to what she stated in her statement recorded u/s 164 Cr.P.C. as reproduced hereinabove.
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).
21. PW3 - Prosecutrix in her examinationinchief has specifically deposed that "Police had got me medically examined".
PW9 Dr. Parvinder, SR Gynae, SGM Hospital, Mangol Puri, Delhi has proved the gynaecological examination as was conducted by Dr. Richa, SR Gynae from portion 'A' to 'A1' on the MLC Ex.
58 of 93 59 FIR No. 207/09 PS - Aman Vihar PW9/A, signed by Dr. Richa at point 'A'.
The perusal of MLC Ex. PW9/A interalia indicates that in the said MLC it is being specifically mentioned that at the time of her gynaecological examination, PW3 - prosecutrix has herself told the alleged history of sexual assault by two persons on the evening of 14/06/2009. It is pertinent to reproduce the alleged history as told by PW3 - prosecutrix which reads as under : "Patient brought for medical examination by L/Constable Pushpa with alleged H/o sexual assault by two persons on evening of 14/06/2009, as told by patient herself."
The said alleged sexual history told by the PW3 - prosecutrix to the Doctor at the time of her gynaecological examination as reproduced hereinabove which find mentioned in the MLC Ex. PW9/A is found to be corroborated by PW5 - Smt. Kamlesh, her Bhabhi to whom she disclosed the facts relating to the crime, soon after the incident at the first available opportunity being relevant u/s 6 and 8 of the Indian Evidence Act, 1872.
59 of 93 60 FIR No. 207/09 PS - Aman Vihar In the circumstances, the twisting of facts/oscillations made during the course of her examinationinchief by PW3 - prosecutrix whereby implicating accused Pintu and exonerating accused Hari Ram, does not falsify the case of prosecution which is otherwise proved on record by clear, cogent and convincing evidence. The version of PW5 - Kamlesh, Bhabhi of prosecutrix, to whom prosecutrix disclosed the facts of the committal of sexual assault upon her (PW3 - prosecutrix) by accused Pintu and Hari Ram, soon after the incident at the first available opportunity has remained intact.
Moreover, on the facts of said alleged history as reproduced hereinabove, given by PW3 - prosecutrix at the time of her gynaecological examination mentioned in the MLC Ex. PW9/A, PW3 - prosecutrix was not crossexamined on behalf of the accused. For failure to do so accused is to blame themselves and none else.
At the cost of repetition, it is settled law that if there is no 60 of 93 61 FIR No. 207/09 PS - Aman Vihar 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).
22. 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.
61 of 93 62 FIR No. 207/09 PS - Aman Vihar 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 is stated : ".....even slight penetration is sufficient and emission is unnecessary."
On analysing the testimony of PW3 - Prosecutrix, coupled with the testimony of PW5 - Kamlesh, her Bhabhi, in the light of biological and serological evidence Ex. PW14/A and Ex. PW14/B, medical and gynaecological examination vide MLC Ex. PW9/A and from portion 'A' to 'A1' on the MLC Ex. PW9/A of the prosecutrix together with the MLC of accused Hari Ram Ex. PW12/A and MLC of 62 of 93 63 FIR No. 207/09 PS - Aman Vihar accused Suresh @ Pintu Ex. PW12/B, as discussed hereinbefore, the act of performing of sexual intercourse activity by complete penetration of the 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 Suresh @ Pintoo and Hari Ram with PW3 - Prosecutrix against her will.
23. Learned Counsel for the accused submitted that the Police seized one underwear, one peticot, one saree and one blouse are Ex. P1 to P4 and one torn underwear, one torn salwar, one torn lady shirt, one torn barzier and one chunni. Same are Ex. P5 to P9. He submitted that no semen was found present and two clothes were not used at the time on the date of incident which falsifies the case of the prosecutrix.
I have carefully perused and analysed the evidence on record.
63 of 93 64 FIR No. 207/09 PS - Aman Vihar With due respect, it appears that the Learned Counsel for the accused has either misread the evidence or has not read the evidence on the record.
PW3 - prosecutrix during her examinationinchief has deposed which is reproduced and reads as under : "I can identify the clothes seized at the time of my medical examination, if shown to me.
At this stage, parcel no. 1 bearing the seal of FSL is opened which containing one underwear, one petticoat, one saree and one blouse. All are shown to the witness who identified the same. Same are Ex. P1 to P4.
At this stage, Parcel No. 2 bearing the seal of FSL is opened which containing one torn underwear, one torn salwar, one torn lady shirt, one torn brazier and one chunni. All are shown to the witness who identified the same. Same are Ex. P5 to Ex. P9."
On the said part of the testimony of PW3 - prosecutrix, she was not crossexamined on behalf of the accused and she was the only competent witness who would have been fully capable of explaining correctly the factual situation. For failure to do so, accused are to blame themselves and none else.
64 of 93 65 FIR No. 207/09 PS - Aman Vihar Further, PW9 - Dr. Parvinder, SR, Gyane, SGM Hospital has proved the gynaecological examination of the prosecutrix as was conducted by Dr. Richa, SR, Gynae from portion 'A' to 'A1' on the MLC Ex. PW9/A signed by Dr. Richa at point 'A'.
The perusal of the gynaecological examination from portion A' to 'A1' on the MLC Ex.PW9/A also clearly indicates regarding the sets of the clothes of the prosecutrix seized at the time of her gynaecological examination.
Moreover, in the Biological Report Ex. PW14/A, in the description of the articles contained in the parcel, the details of the clothes are mentioned. At the cost of repetition, the relevant part of the description of the articles contained in the parcel of the Biological Report Ex. PW14/A is reproduced and reads as under : "DESCRIPTION OF ARTICLES CONTAINED IN PARCEL Parcel '1' : One sealed cloth parcel sealed with the seal of "SGMH GOVT OF NCT DELHI" containing exhibits '1a', '1b', 65 of 93 66 FIR No. 207/09 PS - Aman Vihar '1c' & '1d' described as undergarments of prosecutrix. Exhibit '1a' : One underwear having whitish stains.
Exhibit '1b' : One petticoat. Exhibit '1c' : One saree. Exhibit '1d' : One blouse. Parcel '2' : One sealed cloth parcel sealed with the
seal of "SGMH GOVT OF NCT DELHI" containing exhibits '2a', '2b', '2c', '2d' & '2e', kept in a polythene described as undergarments and clothes of sexual time of prosecutrix.
Exhibit '2a' : One torn underwear.
Exhibit '2b' : One torn salwar.
Exhibit '2c' : one torn lady's shirt.
Exhibit '2d' : One torn brassier.
Exhibit '2e' : One chunni.
XX XX XX XX"
From above, it is clearly indicated that parcel no. 1 contained the clothes which were worn by the prosecutrix at the time of her medical examination and parcel no. 2 contained the clothes which she was wearing at the time of sexual assault and the details of both the said parcels no. 1 & 2 are found to be in consonance with the 66 of 93 67 FIR No. 207/09 PS - Aman Vihar gynaecological examination of PW3 - prosecutrix from portion 'A' to 'A1' on the MLC Ex. PW9/A. As regards, the detection of the human semen on exhibit '1a' (Underwear of the prosecutrix) and exhibit '2a' (Torn underwear of sexual time of prosecutrix), the biological and serological evidence has been reproduced, discussed and analysed hereinbefore and no further discussion is called for on it.
In the circumstances, there is no substance in the plea so raised by the Learned Counsel for the accused.
24. Learned Counsel for the accused submitted that accused persons were not arrested in the manner as stated by the prosecution which creates doubt in the testimony of the prosecution witnesses.
I have carefully perused and analysed the evidence on record.
Learned Counsel for the accused has not clarified as to what 67 of 93 68 FIR No. 207/09 PS - Aman Vihar he intends to convey by raising the said plea.
PW1 - HC Kuldeep Singh in his examinationinchief has deposed that on 17/06/2009, at the instance of prosecutrix (name withheld) both the accused Hari Ram and Suresh, present in the Court (correctly identified) were arrested from D101 and D108, Inder Enclave, Phase - II, Delhi vide memo Ex. PW1/A and Ex. PW1/B signed by him at point 'A' and their personal search were conducted vide memo Ex. PW1/C and Ex. PW1/D signed by him at point 'A'. His testimony has also been corroborated by PW13 - SI Kamal Singh, IO. Inspite of incisive crossexamination of PW1 - HC Kuldeep Singh and PW13 - SI Kamal Singh, nothing material has been brought out so as to impeach their creditworthiness. There is nothing in their statements to suggest that they had any animus against the accused to falsely implicate them in the case.
The theory propounded by the Learned Counsel for the accused that, "Accused persons were not arrested in the manner as stated by the prosecution" has not been made probable much 68 of 93 69 FIR No. 207/09 PS - Aman Vihar established by any cogent evidence. Nor any suggestion regarding the said theory was put either to PW3 - prosecutrix or PW13 - SI Kamal Singh IO during their crossexamination. Nor even a single word regarding the said theory, so propounded, was uttered by the accused during their statements recorded u/s 313 Cr.P.C. In the circumstances, the theory so floated is merely an afterthought and falls flat on the ground.
In the circumstances, there is no substance in the plea so raised by the Learned Counsel for the accused.
25. Learned Counsel for the accused submitted that PW3 Prosecutrix herself stated the facts to her bhabhi on the same date as per the statement given to the NGO while PW5 Ms. Kamlesh, her bhabhi has stated that the prosecutrix stated to her on 17/06/2009. Learned Counsel for the accused submitted that it clearly shows that as an after thought the accused have been falsely implicated in the case.
I have carefully perused and analysed the evidence on 69 of 93 70 FIR No. 207/09 PS - Aman Vihar record.
At the outset, there is no statement proved on the record given to the NGO by PW3 - prosecutrix. Learned Counsel for the accused failed to clarify as to the basis of raising the plea that, "PW3 - prosecutrix herself stated the facts to her Bhabhi on the same date, as per the statement given to the NGO". Nor the said plea that "PW3 - prosecutrix herself stated the facts to her Bhabhi on the same date, as per the statement given to the NGO" was put to PW5 - Kamlesh, Bhabhi of the prosecutrix during her entire incisive and lengthy crossexamination. Nor the prosecutrix was challenged on the said plea during the course of her crossexamination. For failure to do so, accused are to blame themselves and none else.
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).
PW5 - Kamlesh, Bhabhi of the prosecutrix in her 70 of 93 71 FIR No. 207/09 PS - Aman Vihar examinationinchief has specifically deposed that her Nanad/prosecutrix on 17/06/2009 after persuasion told the facts regarding the committal of the crime upon her on 14/06/2009 by accused Hari Ram and Pintu.
At the cost of repetition, PW5 - Kamlesh in her examinationinchief has deposed which is reproduced and reads as under : "Prosecutrix (name withheld) is my sisterinlaw (Nanad). On 14/06/2009 my Nanad prosecutrix (name withheld) had gone to the factory as the owner of the factory Hari Ram called her for giving her balance wages. After coming from the factory prosecutrix (name withheld) was not taking any food in her rented accommodation which I came to know from my husband as we were living near to her rented house. I went in the house of my Nanad prosecutrix (name withheld) and inquired from her about the reason of not taking food. After pursuation (persuasion) my Nanad prosecutrix (name withheld) told me that on 14/06/2009 when she had gone for collecting her balance wages in the factory both her employer Hari Ram and Pintoo who was also working previously with prosecutrix (name withheld) had committed rape upon her. In order to save herself she also fought with them as a result of which she had suffered abrasions on her left eye and on her hand and was also told me that both the accused threatened her that if she disclose the fact of rape to anybody she would be killed by them. My Nanad prosecutrix (name withheld) told me the above fact on 17/06/2009 she had also stated that she had not disclosed the fact of rape to her husband because of threatening given by both the accused. On my informing to the husband of my Nanad prosecutrix (name withheld) I 71 of 93 72 FIR No. 207/09 PS - Aman Vihar along with husband of prosecutrix (name withheld) and prosecutrix (name withheld) went to PS Aman Vihar. Prosecutrix (name withheld) was produced before the SHO and after inquiry in detail prosecutrix (name withheld) was got medically examined under the protection of one lady constable from SGM Hospital."
(Underlined by me) There is nothing in the crossexamination of PW5 - Kamlesh so as to impeach her creditworthiness. At the cost of repetition, the testimony of PW5 - Kamlesh has been found to be clear, natural, cogent, inspiring confidence and having a ring of truth.
In the circumstances, there is no substance in the plea so raised by the Learned Counsel for the accused.
26. Learned Counsel for the accused submitted that as per MLC no any internal or external injuries sustained by the prosecutrix in the incident dated 14/06/2009. Learned Counsel for the accused further submitted that the doctor did not find any mark on the prosecutrix. There was neither bruise nor an abrasion on her person, which shows that the prosecutrix did not resist the accused in his attempt to ravish her.
72 of 93 73 FIR No. 207/09 PS - Aman Vihar I have carefully perused and analysed the evidence on record.
The medical and gynaecological examination of PW3 - prosecutrix has been discussed and analysed hereinbefore.
PW12 - Dr. Manoj Dhingra proved the preliminary medical examination of the prosecutrix as was conducted by Dr. Naveen vide MLC Ex. PW9/A signed by Dr. Naveen at point 'B'.
At the cost of repetition, PW12 - Dr. Manoj Dhingra, CMO Mortuary, SGM Hospital, Mangol Puri, Delhi has deposed that he has been deputed by the MS of the Hospital to depose on behalf of Dr. Naveen and Dr. Ish Kumar who have since left the services of SGM Hospital and their present whereabouts are not available in the Hospital. He is acquainted with the handwriting and signatures of Dr. Naveen as he has seen him signing and writing during the official course of the duties. He has seen the MLC No. 7672 of prosecutrix (name withheld) 73 of 93 74 FIR No. 207/09 PS - Aman Vihar W/o Pankaj, 28 years old female, MLC was prepared by Dr. Naveen which is in his handwriting i.e. already exhibited as Ex. PW9/A wherein Dr. Naveen's signature is at point 'B'.
PW9 Dr. Parvinder, SR Gynae, SGM Hospital, Mangol Puri, Delhi proved the gynecological examination as was conducted by Dr. Richa, SR Gynae from portion 'A' to 'A1' on the MLC Ex. PW9/A, signed by Dr. Richa at point 'A'.
At the cost of repetition, PW9 Dr. Parvinder, SR Gynae, SGM Hospital, Mangol Puri, Delhi has deposed that she is deputed on behalf of Dr. Richa by the administrative department. She knows the handwriting and signature of Dr. Richa as she has seen her writing and signing in usual course of her duties in the Hospital during her tenure. Now she has left the Hospital and her whereabouts are not known to her. On 17/06/2009 at about 6:00 p.m. one patient/prosecutrix (name withheld) W/o Sh. Pankaj was brought by W/Constable Pushpa for medical examination. After preliminary examination she was referred to SR Gynae for further examination. Dr. Richa the then SR Gynae has examined the patient and her gynaecological examination is from Portion 74 of 93 75 FIR No. 207/09 PS - Aman Vihar 'A' to 'A1' on MLC Ex. PW9/A signed by Dr. Richa at Point 'A'.
Despite grant of opportunity PW9 - Dr. Parvinder and PW12 - Dr. Manoj Dhingra were not crossexamined on behalf of accused.
As regards nonfinding of any signs of injury on the body part 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 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. (Vide Modi in Medical jurisprudence and Toxicology (Twenty First Edition) at page 369 & Parikh's 75 of 93 76 FIR No. 207/09 PS - Aman Vihar 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.
76 of 93 77 FIR No. 207/09 PS - Aman Vihar
27. Learned Counsel for the accused submitted that the rape was alleged to have been committed in a Residential Area, where the factory was running and adjacent to the premises locality was in existence. Neither the prosecutrix raised any alarm nor cried. It shows that no such rape has been committed upon the prosecutrix. Nor she tried to escape from the clutches of accused Hari Ram.
I have carefully perused and analysed the evidence on record.
As regards the plea that the rape was alleged to have been committed in a Residential Area, where the factory was running and adjacent to the premises locality was in existence. Neither the prosecutrix raised any alarm nor cried. Nor she tried to escape from the clutches of accused Hari Ram is concerned, it is evident from the record that during the crossexamination of PW3 - prosecutrix none of the said accused voiced their concerns or raised any apprehension on the aspects regarding which the plea has been raised. She was the only competent witness who would have been fully capable of explaining correctly the 77 of 93 78 FIR No. 207/09 PS - Aman Vihar factual situation. For failure to do so, accused are to blame themselves and none else.
Moreover, non raising of any hue and cry by the PW3 - prosecutrix does not falsify the case of the prosecution which is otherwise proved on record by clear, cogent and convincing evidence.
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).
The prosecution can be expected to examine only those who have witnessed the events and not those who have not seen it though the neighbourhood may be replete with other residents also.
In case 'State of Rajasthan Vs. Teja Ram & Ors.', AIR 1999 SC 1776, the Hon'ble Supreme Court has held that : "The overinsistence on witnesses having no relation with 78 of 93 79 FIR No. 207/09 PS - Aman Vihar the victims often results in criminal justice going away. When any incident happens in a dwelling house, the most natural witnesses would be the inmates of that house. It is unpragmatic to ignore such natural witnesses and insist on outsiders who would not have even seen anything. If the Court has discerned from the evidence or even from the investigation records that some other independent person has witnessed any event connecting the incident in question, then there is a justification for making adverse comments against nonexamination of such a person as a prosecution witness. Otherwise, merely on surmises the Court should not castigate the prosecution for not examining other persons of the locality as prosecution witnesses. The prosecution can be expected to examine only those who have witnessed the events and not those who have not seen it though the neighbourhood may be replete with other residents also."
In the circumstances, there is no substance in the plea so raised by the Learned Counsel for the accused.
28. Learned Counsel for the accused submitted that the prosecutrix at about 6:30 p.m. visited the factory after getting a phone call from the accused as per the allegation, but the prosecutrix did not refuse to visit at that time when all other workers were not available at factory because of Sunday and it was well known to the prosecutrix and she could have gone on the next working day.
79 of 93 80 FIR No. 207/09 PS - Aman Vihar I have carefully perused and analysed the evidence on record.
As regards the plea that the prosecutrix at about 6:30 p.m. visited the factory after getting a phone call from the accused as per the allegation, but the prosecutrix did not refuse to visit at that time when all other workers were not available at factory because of Sunday and it was well known to the prosecutrix and she could have gone on the next working day, is concerned, it is evident from the record that during the crossexamination of PW3 - prosecutrix none of the said accused voiced their concerns or raised any apprehension on the aspects regarding which the plea has been raised. She was the only competent witness who would have been fully capable of explaining correctly the factual situation. For failure to do so, accused are to blame themselves and none else.
Moreover, PW3 - prosecutrix during her examinationin chief has specifically deposed that, "I went to the factory for taking my wages of my own".
80 of 93 81 FIR No. 207/09 PS - Aman Vihar The said part of the testimony of PW3 - prosecutrix was not challenged during her crossexamination on behalf of the accused. Further, the testimony of PW3 - prosecutrix on this aspect is also found to be corroborated on this aspect from the testimony of PW5 - Kamlesh, her Bhabhi, to whom she disclosed the facts relating to the crime, shortly after the incident, at the first available opportunity.
At the cost of repetition, PW5 - Kamlesh during her examinationinchief has specifically deposed that : "After pursuation (persuasion) my Nanad/prosecutrix (name withheld) told me that on 14/06/2009 when she had gone for collecting her balance wages in the factory both her employer Hari Ram and Pintoo who was also working previously with prosecutrix (name withheld) had committed rape upon her."
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).
81 of 93 82 FIR No. 207/09 PS - Aman Vihar In the circumstances, there is no substance in the plea so raised by the Learned Counsel for the accused.
29. Learned Counsel for the accused submitted that there is delay in lodging the FIR which is fatal to the prosecution. As per the prosecution the occurrence is of 14/06/2006, whereas the FIR had been lodged on 17/06/2009.
I have carefully perused and analysed the evidence on record.
PW3 - prosecutrix in her examinationinchief has deposed which is reproduced and reads as under : "In the year, 2009, I was residing in Delhi but I do not know the address. I was working in the factory of Manoj, manufacturing threads etc. I worked in the factory only for about one month. Thereafter, I left the job. In the same factory Pintoo was also working at that time. The factory premises in which Manoj was manufacturing threads belongs to Hari Ram.
In the year, 2009 I do not remember the month but it was of fourteen day I went to the factory of Manoj for taking my wages of one month which I had worked in his factory Pintoo has committed galat kaam with me. Galat kaam I mean rape. I did not disclose the said fact to my husband as my husband would have beaten me, therefore, later on I 82 of 93 83 FIR No. 207/09 PS - Aman Vihar disclosed the said fact to my Bhabhi Kamlesh.
Kamlesh took me to the Police Station. Police had got me medically examined. Police had also recorded my statement. Statement is Ex. PW3/A and I have put thumb mark at Point 'A' on my statement. Police have also got recorded my statement u/s 164 Cr.P.C. before the Metropolitan Magistrate, Rohini, Delhi....."
(Underlined by me) From the aforesaid narration of PW3 - prosecutrix, it is clearly indicated that with regard to the committal of the sexual assault upon her, in the factory, she did not disclose the said fact to her husband as her husband would have beaten her and later on she disclosed the said fact to her Bhabhi Kamlesh (PW5) who took her to the Police Station.
PW5 - Kamlesh, Bhabhi of the prosecutrix has corroborated the testimony of PW3 - prosecutrix on this aspect.
PW5 - Kamlesh during her examinationinchief has deposed which is reproduced and reads as under : "Prosecutrix (name withheld) is my sisterinlaw (Nanad). On 14/06/2009 my Nanad prosecutrix (name withheld) had gone to the factory as the owner of the factory Hari Ram called her for giving her balance wages. After coming from the factory prosecutrix (name 83 of 93 84 FIR No. 207/09 PS - Aman Vihar withheld) was not taking any food in her rented accommodation which I came to know from my husband as we were living near to her rented house. I went in the house of my Nanad prosecutrix (name withheld) and inquired from her about the reason of not taking food. After pursuation (persuasion) my Nanad prosecutrix (name withheld) told me that on 14/06/2009 when she had gone for collecting her balance wages in the factory both her employer Hari Ram and Pintoo who was also working previously with prosecutrix (name withheld) had committed rape upon her. In order to save herself she also fought with them as a result of which she had suffered abrasions on her left eye and on her hand and was also told me that both the accused threatened her that if she disclose the fact of rape to anybody she would be killed by them. My Nanad prosecutrix (name withheld) told me the above fact on 17/06/2009 she had also stated that she had not disclosed the fact of rape to her husband because of threatening given by both the accused.....)."
(Underlined by me) From the aforesaid narration of PW5 - Kamlesh, it is clearly indicated that on 14/06/2009, after coming from the factory, prosecutrix was not taking any food and when she went to the house of her Nanad/prosecutrix and inquired from her about the reason for not taking the food, after persuasion, her Nanad/prosecutrix told her that on 14/06/2009 when she had gone for collecting her balance wages in the factory both her employer Hari Ram and Pintoo who was also working 84 of 93 85 FIR No. 207/09 PS - Aman Vihar previously with prosecutrix had committed rape upon her. In order to save herself she also fought with them as a result of which she had suffered abrasions on her left eye and on her hand and has also told her that both the accused threatened her that if she disclose the fact of rape to anybody she would be killed by them. My Nanad/prosecutrix told her the above fact on 17/06/2009 she had also stated that she had not disclosed the fact of rape to her husband because of threatening given by both the accused.
From above it is clearly indicated that PW3 - prosecutrix, after the committal of the sexual assault upon her, at the factory premises was in a fearful state of mind because of the threatening given by both the accused that if she disclosed the fact of rape to anybody then she would be killed by them and was also under the fear that in case, she disclosed the incident to her husband, then her husband would give her beating and she being under such fear left taking food and after much persuasion by her Bhabhi (PW5 Kamlesh), she disclosed the incident to her. In such adverse circumstances of she being under the grip of fearful state of mind, one is left wandering as to how it is expected that she 85 of 93 86 FIR No. 207/09 PS - Aman Vihar would gather the courage to report the matter to the Police.
In view of above and in the circumstances, the delay in reporting the matter to the Police sufficiently and satisfactorily stands explained.
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)].
Delay in lodging of FIR is a normal phenomenon especially 86 of 93 87 FIR No. 207/09 PS - Aman Vihar in cases like rape or outraging the modesty of a women, the aggrieved or the injured person or her relations will naturally think twice before giving a complaint to the police (Ref. Mohd. Habib Vs. State (Delhi Administration) 1989 CRLJ 137 (Delhi).
The delay in a case of sexual assault, cannot be equated with the case involving other offences. There are several factors which weigh in the mind of the prosecutrix and her family members before coming to the police station to lodge a complaint. In a tradition bound society prevalent in India, more particularly, rural areas, it would be quite unsafe to throw out the prosecution case merely on the ground that there is some delay in lodging the FIR. (Ref. State of Himachal Pradesh V. Prem Singh AIR 2009 SC 1010).
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 87 of 93 88 FIR No. 207/09 PS - Aman Vihar 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 : "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 88 of 93 89 FIR No. 207/09 PS - Aman Vihar 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 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 89 of 93 90 FIR No. 207/09 PS - Aman Vihar 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 raised by the Learned Counsel for the accused.
30. Learned Counsel for the accused referred to the cases and are reported as 'Bakhtaur Singh @ Kaura Vs. State of Punjab' 2006 (3) RCR (Criminal) 642, 'Tameezuddin @ Tammu Vs. State of (NCT) of Delhi', 2009 (4) JCC 2809, 'Mohan Singh Vs. State of Haryana' 2004 (4) RCR (Criminal) 660, 'Rajbir @ Fauji Vs. State of Haryana' 2004(4) RCR (Criminal) 436, 'Mohinder Singh Vs. State of Haryana' 2004 (4) RCR (Criminal) 1005, 'Dilip and Anr. Vs. State of Madhya Pradesh' AIR 2001 SC 3049, 'Sudhansu Sekhar Sahoo Vs. State of Orissa' AIR 2003, SC 2136 and 'Ram Narain Singh Vs. The State of Punjab' AIR 1975, SC 1727.
I have carefully gone through the same. With due respect 90 of 93 91 FIR No. 207/09 PS - Aman Vihar there is no dispute as to what has been held therein but the same are wholly distinguishable in view of the peculiar facts and nature of evidence adduced in the instant case. In case titled Sunil Kumar Vs. State 181 (2011) DLT 528(DB) it was held that "No case can strictly be a precedent in a criminal matter for the reason no two criminal trials would unfold the same story and the same evidence. Thus, a decision cited pertaining to the destination reached at a particular criminal voyage has to be carefully applied, on a principle of law, in a subsequent voyage".
31. In view of above and in the circumstances, prosecution has thus categorically proved beyond shadows of all reasonable doubts that on 14/06/2009 at about 6:00 p.m., at the factory premises of Manoj belonging to accused Hari Ram, situated at D - Block, Indra Enclave, Phase - II, Delhi both the accused Suresh @ Pintu and Hari Ram, in furtherance of their common intention committed rape upon PW3 - prosecutrix against her will. However, prosecution has failed to prove that both the accused Suresh @ Pintu and Hari Ram, in furtherance of their common intention, by deceitful means, had induced PW3 -
91 of 93 92 FIR No. 207/09 PS - Aman Vihar prosecutrix, aged around 19 years (to be exact 19 years, 06 months and 14 days) to come to the factory premises of Manoj belonging to accused Hari Ram, situated at D - Block, Indra Enclave, Phase - II, Delhi with intent that she may be forced to illicit intercourse and that both of them in furtherance of their common intention had wrongfully confined her.
I accordingly hold accused Suresh @ Pintu and Hari Ram guilty for the offence punishable u/s 376(2)(g) IPC and convict them thereunder. However, both the accused Hari Ram and Suresh @ Pintoo are acquitted for the offences punishable u/s 366/34 IPC and 342/34 IPC.
32. In view of above discussion, I am of the considered opinion that as far as the involvement of accused Hari Ram and Suresh @ Pintoo in the commission of the offence u/s 376 (2)(g) IPC is concerned, the same is sufficiently established by the cogent and reliable evidence and in the ultimate analysis, the prosecution has been able to bring the guilt home to the accused Hari Ram and Suresh @ Pintoo beyond shadows of all reasonable doubts and there is no room for hypothesis, consistent with 92 of 93 93 FIR No. 207/09 PS - Aman Vihar that of innocence of accused. However, as far as the involvement of accused Hari Ram and Suresh @ Pintoo in the commission of the offences u/s 366/34 IPC and 342/34 IPC is concerned, the prosecution has failed to bring guilt home to the accused Hari Ram and Suresh @ Pintoo. I, therefore hold accused Suresh @ Pintu and Hari Ram guilty for the offence punishable u/s 376(2)(g) IPC and convict them thereunder. However, both the accused Hari Ram and Suresh @ Pintoo are acquitted for the offences punishable u/s 366/34 IPC and 342/34 IPC. Announced in the open Court (MAHESH CHANDER GUPTA) on 24th Day of July, 2013 Additional Sessions Judge Special Fast Track Court (N/W District), Rohini, Delhi 93 of 93