Delhi District Court
State vs . 1. Sunder on 20 November, 2014
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FIR No. 177/11
PS - Narela
IN THE COURT OF SH. MAHESH CHANDER GUPTA :
ADDITIONAL SESSIONS JUDGE : SPECIAL FAST TRACK
COURT : NORTHWEST DISTRICT : ROHINI : DELHI
SESSIONS CASE NO. : 85/13
Unique ID No. : 02404R0197182011
State Vs. 1. Sunder
S/o Late Shri Subh Ram
R/o Village Harodi,
PS - Badra, District Bhiwani,
Haryana.
2. Ajay @ Kalia
S/o Shri Hawa Singh
R/o Village Dokka Hariya,
PS - Badra, District Bhiwani,
Haryana.
FIR No. : 177/11
Police Station : Narela
Under Sections : 363/365/376/34 IPC
Date of committal to session Court : 27/08/2011
Date on which judgment reserved : 17/11/2014
Date on which judgment announced : 20/11/2014
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FIR No. 177/11
PS - Narela
J U D G M E N T
1. Briefly stated the case of the prosecution as unfolded by the report u/s 173 Cr.P.C. is as under : On 21/04/2011, at about 4:15 p.m. complainant Raj Singh S/o Ram Chander R/o House No. 1305, Pana Paposian Devi Wali Gali, Narela, Delhi came to PS - Narela and lodged the report regarding missing of his daughter/prosecutrix (name withheld being a case u/s 376 IPC) which is to the effect that, his daughter/prosecutrix aged about 17 years, Height - 4'5'' having round face with dark complexion, having a black mark on right cheek, who was wearing red suit salwar and was wearing plastic chappal in her feet is missing (Laapata) since last year October, 2010. They had been searching her of their own since then, now they have full suspicion that his daughter (prosecutrix) had been taken away by the person having phone no. 08053950262 regarding whom they came to know as Mehar Chand S/o Jug Lal, House no. 172, Village Dokka, District Bhiwani, Haryana. Legal action be taken against this person and his daughter be brought back. The said report was recorded vide DD No. 19. On the basis of DD No. 19, finding that 2 of 130 3 FIR No. 177/11 PS - Narela an offence u/s 363 IPC appeared to have been committed, the case was got registered and the investigation was handed over to SI Rajbir. The information regarding missing (Gumshudgi) was given at No. 100 vide challan no. 148. During the course of investigation, SI Rajbir recorded the statements of witnesses and made efforts for the tracing out of the prosecutrix and the accused. Thereafter, on the identification of complainant Raj Singh, recovery of the prosecutrix in the company of two boys namely Sunder and Ajay @ Kalia was made who were arrested. The medical examination of the prosecutrix was got conducted from SRHC Hospital, Narela. Both the accused Sunder and Ajay @ Kalia were also got medically examined vide ME No. 1016/11 and ME No. 1011/11 respectively. The sealed exhibits handed over by the Doctor after the medical examination of the prosecutrix and of the accused Sunder and Ajay @ Kalia were taken into Police possession. The disclosure statements of accused Sunder and Ajay @ Kalia were recorded. Statement of the prosecutrix u/s 164 Cr.P.C. was got recorded. The sealed exhibits were sent to the FSL. No clue could be gathered about the lady who had got performed the marriage of prosecutrix with Ajay @ Kalia after taking her (prosecutrix) to her house at Panipat. On 3 of 130 4 FIR No. 177/11 PS - Narela finding any clue against her the supplementary challan shall be prepared and filed in the Court.
Upon completion of the necessary further investigation challan for the offences u/s 363/365/376/34 IPC was prepared against accused Sunder and Ajay @ Kalia and was sent to the Court for trial.
2. Since the offence u/s 376 IPC is exclusively triable by the Court of Session, therefore, after compliance of the provisions of Section 207 Cr.P.C. the case was committed to the Court of Session u/s 209 Cr.P.C.
3. Upon committal of the case to the Court of Session, after hearing on charge prima facie a case u/s 363/366/376 IPC against accused Ajay @ Kalia and a case u/s 376/34 r/w section 109 IPC against accused Ajay @ Kalia and Sunder was made out. Charges were framed accordingly which were read over and explained to the accused to which they pleaded not guilty and claimed trial.
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4. In support of its case prosecution has produced and examined 13 witnesses. PW1 - Dr. Anima Dayal, Senior Resident, Satyawati Raja Harish Chand Hospital, Narela, Delhi, PW2 - HC Parvinder Kumar, PW3 - Smt. Birmla, PRT, MCD School at Panna Paposian - I, Narela, Delhi - 40, PW4 - Constable Gopi Chand, PW5 - Sh. Sunil Kumar, Learned MM, PW6 - Sh. Raj Singh, PW7 - Prosecutrix (name withheld), PW8 - Sh. Indresh Kumar Mishra, Senior Scientific Officer (Biology) FSL, Rohini, Delhi, PW9 - HC Pawan Kumar, PW10 - SI Rajbir Singh, PW11 - Dr. Awadesh, Medical Officer, SRHC Hospital, Narela Delhi, PW12 - Dr. Rajesh, Casualty Medical Officer, SRHC Hospital, Narela, Delhi and PW13 - Dr. Hema Mahawan, Specialist Obs. & Gynae, SRHC Hospital, Narela, Delhi.
5. In brief the witnessography of the prosecution witnesses is as under : PW1 - Dr. Anima Dayal, Senior Resident, Satyawati Raja Harish Chand Hospital, Narela, Delhi, who deposed that on 24/04/2011, at about 1:00 p.m., one patient/prosecutrix (name withheld) D/o Sh. Raj Singh was brought to the above mentioned Hospital in Casualty Ward 5 of 130 6 FIR No. 177/11 PS - Narela and after preliminary examination, she was referred to SR, Gynae. On the day, she was working as SR, Gynae and she examined the patient/prosecutrix (name withheld) who was well oriented in time, place and person. UPT Negative. On general examination patient was having abrasion .5 X .5 cm over right hand and abrasion .5 X .5 cm over right leg and left leg. Per abdomen of the patient was soft. No tenderness bowel sounds present. Per speculum examination cervix and vagina were healthy. On per vagina examination, hymen ruptured. Uterus normal size, anteverted. She has also collected samples and sealed the same which were given to the Investigating Officer. Three bags Sl. No. 1 to 3 were also sealed and handed over to SI Rajbir. The MLC is Ex. PW1/A and her examination noting is from 'A' to 'A1' on the MLC Ex. PW1/A and signed by her at point 'B'.
PW2 - HC Parvinder Kumar, who deposed that on 21/04/2011, he was working as Duty Officer from 4:00 p.m. to 12:00 mid night at Police Station - Narela. On that day, Raj Singh S/o Sh. Ram Chander came to the Police Station and on his statement he got recorded the FIR No. 177/11 under section 363 IPC from Computer 6 of 130 7 FIR No. 177/11 PS - Narela Operator and Complainant has also signed Kayami DD No. 19A and also signed the Rojnamcha Register. Attested copy of DD No. 19A prepared by him is Ex. PW2/A signed by him at point 'A'. He has also brought the FIR Register and the computerized copy of FIR is Ex. PW2/B signed by him at point 'A' (OSR). After registration of the case, the copy of the FIR was entrusted to SI Rajbir Singh as per the order of SHO.
PW3 - Smt. Birmla, PRT, MCD School at Panna Paposian
- I, Narela, Delhi - 40, who deposed that she has brought admission register of prosecutrix (name withheld) D/o Rajpal. As per record, prosecutrix (name withheld) was admitted in aforementioned School on 06/07/2000 and she has passed 5th class from School at the time of her admission in School (her date of birth) was 17/11/1994. She has also brought the admission form submitted up by mother of prosecutrix (name withheld) namely Smt. Santosh. At the time of admission, Smt. Santosh had submitted a document in the form of an affidavit in proof of her age. She has brought original Admission Register, Admission Form and Affidavit and copy of the same are Ex. PW3/A and PW3/B and Ex.
7 of 130 8 FIR No. 177/11 PS - Narela PW3/C respectively (OSR). She has also seen the copy of School Leaving Certificate of prosecutrix (name withheld) and the same has been issued from their School and the same is Ex. PW3/D which bears the signature of the then Principal at point 'A' who has retired now.
PW4 - Constable Gopi Chand, who deposed that on 24/04/2011, he was posted at PS - Narela as Constable. On that day, he alongwith the complainant Raj Singh and had joined investigation of this case with IO Rajvir Singh. When they were present outside the PS, one Secret Informer had come to them and he disclosed that two boys would come at Narela Railway Station alongwith the prosecutrix (name withheld). After some time two persons came at the Railway Station alongwith a girl and on seeing that girl with those persons, the complainant Raj Singh identified that girl as his daughter/prosecutrix (name withheld). On seeing those persons, IO asked them to stop but instead of stopping they tried to run away but they overpowered them and the prosecutrix was recovered from their possession vide Ex. PW4/A which bears his signature at point 'A'. Both the accused persons Sunder and Ajay present in the Court (correctly identified) were arrested 8 of 130 9 FIR No. 177/11 PS - Narela by IO. Their arrest memos were prepared and arrest memo of accused Sunder is Ex. PW4/B which bears his signature at point 'A'. Arrest memo of accused Ajay was prepared and which is Ex. PW4/C, which bears his signature at point 'A'. Personal search of both accused persons was also conducted by IO. Personal search memo of accused Sunder is Ex. PW4/D and personal search memo of accused Ajay is Ex. PW4/E, which bears his signature at point 'A' in both memos. Both the accused persons had also made disclosure statement recorded by IO. The disclosure statements of accused are Ex. PW4/F and Ex. PW4/G, which bears his signature at point 'A'. After the arrest of accused persons they all reached at SRHC Hospital where the prosecutrix (name withheld) and both persons were got medically examined and after medical examination, the Doctor had handed over 5 pullindas to IO and the same were taken in possession by him vide handing over memo Ex. PW4/H which bears his signature at point 'A'. After the medical examination of accused persons, they came at PS and both accused persons were put in Police lockup. His statement was also recorded by the IO.
PW5 - Sh. Sunil Kumar, Learned MM, who deposed that 9 of 130 10 FIR No. 177/11 PS - Narela on 25/04/2011, an application for recording statement u/s 161 Cr.P.C. (be read as u/s 164 Cr.P.C.) was assigned to him as he was Link MM to the Court of Sh. Deepak Wason, Learned MM and the application is Ex. PW5/A. Prosecutrix (name withheld) was produced by IO and also Identified by IO SI Rajbir Singh. Before recording the statement of the prosecutrix to know about her state of mind, voluntariness he put some preliminary questions to her and the said preliminary questions are Ex. PW5/B. After being satisfied with the competency and voluntariness of the prosecutrix to make the statement, he proceeded to record the statement of the prosecutrix, which is Ex. PW5/C, which was read over and admitted to be correct by the prosecutrix and signed by the prosecutrix at point 'A'. He also appended a certificate regarding the voluntariness and true and correctness of the statement Ex. PW5/D. After conclusion of the proceedings, the same was sent in a sealed over to the Court concern. The proceedings of the recording of the statement is collectively Ex. PW5/E signed by him at points 'B'. An application filed by IO for providing a copy of the statement of prosecutrix was allowed by him vide his order at point 'A' on the application Ex. PW5/F. 10 of 130 11 FIR No. 177/11 PS - Narela PW6 - Sh. Raj Singh, who deposed that prosecutrix (name withheld) is his daughter and now she is about 18 years of age. He does not know the date, month and year, however, it was about many months ago, his daughter/prosecutrix (name withheld) missing from the house. A telephone call was received from prosecutrix (name withheld). He does not remember the number from which the telephone call was received. He is illiterate. He reported the matter to the Police. His daughter was found with two persons. He does not know the name of those persons. He does not remember from which place his daughter was found. Police has arrested the two boys with whom his daughter was found. Police has obtained his signatures on some papers. At present, his eye sight is very weak and he is an old man and he is not able to see his signatures on the documents prepared by the Police. His daughter told that those boys had taken her away with them and they committed rape upon her (gande kam). He can identify those boys, who were apprehended with his daughter. After seeing the accused persons present in the Court, witness submits that these are not the persons who were apprehended with his daughter. PW6 - Raj Singh was cross examined by the Learned Addl. PP for the State on the point of identity 11 of 130 12 FIR No. 177/11 PS - Narela of accused.
PW7 - Prosecutrix is the victim who deposed regarding the incident and proved her statement recorded u/s 164 Cr.P.C. Ex. PW5/C and deposed regarding the investigational aspects which she joined.
PW8 - Sh. Indresh Kumar Mishra, Senior Scientific Officer (Biology) FSL, Rohini, Delhi, who proved the biological and serological reports Ex. PW8/A and Ex. PW8/B respectively signed by him at points 'A'.
PW9 - HC Pawan Kumar, who deposed that on 24/04/2011, he was posted as MHC (M) in PS Narela. On that day, SI Rajbir had deposited five sealed pullindas alongwith sample seal sealed with the seal of 'SRH' and personal search of accused Sunder. He made entry at Srl. No. 197 of Register No. 19. On 07/06/2011, above said sealed pullindas alongwith sample seal were handed over to IO, SI Rajbir Singh for depositing in FSL, Rohini vide RC No. 102/21/11 and thereafter, he deposited the receipt with him. Sealed pullindas remained intact during 12 of 130 13 FIR No. 177/11 PS - Narela his custody. He has brought Register Nos. 19 & 21. The copy of the relevant entry of Register No. 19 is Ex. PW9/A and copy of the relevant entry of Register No. 21 is Ex. PW9/B, copy of receipt is Ex. PW9/C (original seen and returned).
PW10 - SI Rajbir Singh is the Investigating Officer (IO), who deposed that on 21/04/2011, he was posted as Sub Inspector in PS Narela. On that day, Complainant Raj Singh came in the Police Station and lodged a report regarding the kidnapping of his daughter/ prosecutrix (name withheld), age around 17 years and DD No. 19, the copy of which is already exhibited as Ex. PW2/A was lodged. On the basis of DD No. 19, the present FIR, the copy of which is already exhibited as Ex. PW2/D was registered. After registration of FIR, the copy of FIR was handed over to him and investigation was marked to him. He reached at the spot i.e. House No. 1305, Panapaposiya, Narela, Delhi and he made inquiries from the area. He searched for the prosecutrix but not found. On 24/04/2011, he alongwith Raj Singh and Constable Gopi Chand reached at Railway Station Narela on the basis of secret information and from the Railway Station on the identification of 13 of 130 14 FIR No. 177/11 PS - Narela Raj Singh, prosecutrix (name withheld) was apprehended. Two boys were also with prosecutrix (name withheld) and who tried to run away but they were apprehended. The name of the boys were revealed as Sunder and Ajay @ Kalia. The girl/prosecutrix (name withheld) was taken into possession vide memo Ex. PW4/A, bearing his signature at point 'A'. Accused Sunder and Ajay were interrogated and arrested vide arrest memo Ex. PW4/B and Ex. PW4/C, bearing his signature at point 'B', their personal search was conducted vide memo Ex. PW4/D & Ex. PW4/E, bearing his signature at point 'B'. They both made disclosure statement Ex. PW4/F & Ex. PW4/G, bearing his signature at point 'B'. Accused and prosecutrix were taken in SRHC Hospital where they were medically examined and after their medical examination, Doctor handed over the sealed pullinda containing exhibits which were seized vide memo Ex. PW4/H, bearing his signature at point 'B'. Accused were brought to Police Station and sent to lockup. On 25/04/2011, accused were produced in the Court and were sent to JC. He moved an application for recording the statement of prosecutrix u/s 164 Cr.P.C. and his application is Ex. PW5/A and statement of prosecutrix (name withheld) was recorded and he obtained the proceedings vide his 14 of 130 15 FIR No. 177/11 PS - Narela application Ex. PW5/F, bearing his signature at point 'A'. He recorded the statement of witnesses. On 07/06/2011, the exhibits were deposited in the FSL. He also collected the age proof of the prosecutrix which was seized by him vide memo Ex. PW10/A, bearing his signature at point 'A'. After completing the investigation, challan was prepared and filed in the Court. Later on, FSL Result was collected and filed in the Court. He correctly identified both the accused Sunder and Ajay present in the Court.
PW11 - Dr. Awadesh, Medical Officer, SRHC Hospital, Narela Delhi, who deposed that on 24/04/2011, he was posted at SRHC Hospital, Narela as CMO. On that day, patient/prosecutrix (name withheld), D/o Raj Singh aged about 18 years female was brought by SI Rajbir of PS Narela at about 1:00 p.m. with the alleged history of sexual assault. On examination, the patient was conscious and oriented. Her vitals were found normal. No abnormality was detected in her chest, CVS and P/A. He referred her to SR Gynae and for Psychiatric evaluation. The detailed report prepared by him on MLC is Ex. PW11/A which is in his handwriting and bears his signatures at point 15 of 130 16 FIR No. 177/11 PS - Narela 'X'. On the same day, he also examined patient Sunder s/o Shubh Ram aged about 22 years male at about 1:00 p.m. with the alleged history of accused of sexual assault. On examination patient was conscious and oriented. No abnormality was detected in his chest, CVS and P/A and his vitals were found normal. From the examination of patient, it could not be said that patient was not able to (do) sexual intercourse. His blood sample and undergarments were sealed and handed over to IO. The detailed report prepared by him in this respect is Ex. PW11/B which is in his handwriting and bears his signatures at point 'A'. On the same day, he also examined patient Ajay s/o Hawa Singh aged about 24 years male at about 1:00 p.m. for medical examination. On examination patient was conscious and oriented. No abnormality was detected in his chest, CVS and P/A and his vitals were found normal. The detailed report prepared by Junior Resident namely Dr. Bijoy in this respect is Ex. PW11/C under his supervision in his handwriting and bears his signatures at point 'A', which he identify. As per Ex. PW11/C, the patient was having scaly and dryness over bilateral palm and no fresh external injury was seen. Dr. Bijoy has left the services of the Hospital and his present whereabouts are not known. He identify his signatures 16 of 130 17 FIR No. 177/11 PS - Narela as he has seen him signing and writing during the ordinary course of his duties.
PW12 - Dr. Rajesh, Casualty Medical Officer, SRHC Hospital, Narela, Delhi, who deposed that on 25/04/2011, he was posted at SRHC Hospital, Narela as CMO. On that day, he examined patient Ajay s/o Hawa Singh aged about 24 years male at about 12:45 p.m. On examination patient was conscious and oriented. No abnormality was detected in his chest, CVS and P/A and his vitals were found normal. From the examination of patient, it could not be said that patient was not able to (do) sexual intercourse. The detailed report prepared by him in this respect is Ex. PW12/A bearing his signatures at point 'A'.
PW13 - Dr. Hema Mahawan, Specialist Obs. & Gynae, SRHC Hospital, Narela, Delhi, who deposed that she has been deputed in this case by the 'MS' of the Hospital to depose on behalf of Dr. Anima Dayal who had since left the Hospital. She has seen patient consent form, medical history form, form3 etc. in respect of patient/prosecutrix (name withheld), which are the part of the sexual assault forensic kit, the 17 of 130 18 FIR No. 177/11 PS - Narela same are filled up in the handwriting of Dr. Anima Dayal and bearing her signatures at Points 'A'. The same are Ex. PW13/A (colly). She is conversant with the handwriting and signature of Dr. Anima Dayal as she has seen her while writing and signing during the course of his duties.
The testimonies of the prosecution witnesses shall be dealt with in detail during the course of appreciation of evidence.
6. Statements of accused Sunder and Ajay @ Kalia were recorded u/s 313 Cr.P.C. wherein they pleaded innocence and false implication. Accused Sunder did not opt to lead any defence evidence. Accused Ajay @ Kalia opted to lead defence evidence but did not lead any defence evidence.
7. Learned Counsel for the accused Sunder submitted that the complainant/father of the prosecutrix got registered an FIR against Sh. Mehar Chand S/o Sh. Jug Lal, R/o Village Dhoka, District - Bhiwani having mobile No. 08053950262 with the allegations that his 18 of 130 19 FIR No. 177/11 PS - Narela daughter/prosecutrix (name withheld) aged 17 years who was not traceable since October, 2010 is in the custody of said Mehar Chand. On the said complaint an FIR u/s 363 IPC was registered. He further submitted that no action was taken against the said Mehar Chand and he was never called for any investigation by the IO and his name does not even appear in the ChargeSheet in any column. Learned Counsel for the accused Sunder further submitted that prosecutrix allegedly went missing in October, 2009 but astonishingly no complaint in this respect was lodged by her father, the complainant in any Police Station or to any other authority and kept mum for six months and it was only got lodged by the complainant to falsely implicate the accused persons. Learned Counsel for the accused Sunder further submitted that as per the recovery memo of the prosecutrix, she was recovered from the custody of accused Sunder and Ajay @ Kalia from Narela Railway Station, on the pointing out of father of the prosecutrix. However, no railway ticket or any other single document to show that they came from train has been placed on the record and similarly no public witness in this regard was either cited or examined by the prosecution. He further submitted that this fact is also corroborated by the father of the prosecutrix in his cross 19 of 130 20 FIR No. 177/11 PS - Narela examination that both the accused persons are not the same persons from whose possession, his daughter was recovered. He further submitted that prosecutrix in her crossexamination has stated that she was recovered from Dadri, Haryana by her father. Learned Counsel for the accused Sunder further submitted that during the medical examination of prosecutrix about her injury in the forearm, the opinion of the Doctor is that the same is caused by broken bangles and abrasion on both legs were caused by nails of assailants. The sample of nails of both the hands of both the accused persons were taken but nothing incriminating was recovered against accused persons as per the FSL Reports Ex. PW8/A and Ex. PW8/B. Learned Counsel for the accused Sunder further submitted that PW10 - SI Raj Singh during his crossexamination has deposed that, "After the investigation was handed over to me and when I visited the house of Raj Singh at about 4:00 p.m. on 21/04/2011, I met Raj Singh only and none else. I had inquired from Raj Singh about the other family members and he had told that he is having two unmarried sons. I remained till 7:00/8:00 p.m. at the house of Raj Singh on that day. No statement of any person was recorded there nor of any neighbours as none of the neighbours joined the investigation 20 of 130 21 FIR No. 177/11 PS - Narela proceedings. No document regarding the identification of the prosecutrix nor any photograph of the prosecutrix was taken into police possession during the period of my stay at the house of Raj Singh." Learned Counsel for the accused Sunder further submitted that during his crossexamination PW10 - SI Rajbir Singh has deposed that, "during the course of investigation, the village of accused in Bhiwani was also visited on 23/04/2011 and they returned from Bhiwani at about 11:00/12:00 noon but there is no whisper in respect of the said visit in the entire ChargeSheet, no statement of any person is placed on record by the IO". Learned Counsel for accused Sunder submitted that the prosecution has failed the prove its case and prayed for acquittal of accused Sunder on the charges levelled against him.
8. Learned Counsel for the accused Ajay @ Kalia submitted that the accused Ajay @ Kalia is innocent and he has committed no offence whatsoever, rather has been framed in the said false case in association with the Police. Learned Counsel further submitted that there is nothing in the prosecution evidence which may even prove a bit that the accused Ajay @ Kalia has committed the alleged offence.
21 of 130 22 FIR No. 177/11 PS - Narela Learned Counsel for accused Ajay @ Kalia further submitted that none of the prosecution witnesses have at all supported the story and allegations made against the accused Ajay @ Kalia. Rather PW7 - prosecutrix stated in her examinationinchief that she was 18 years of age when she voluntarily married with the accused Ajay @ Kalia with her own free will. PW7 - prosecutrix was crossexamined and she in clear words stated "it is correct that I had come to Delhi with my father. It is correct that thereafter I had gone to my house at Narela. I remained at my home for about ten days. Police met me at my house only." She further said "I used to do the house hold work at the house of Ajay while staying there. Accused Ajay had not used any force (Jabardasti) with me. It is correct that Ajay maintained the relations with me as are between husband an wife (Ajay ne wahi sambandh rakhe jo pati patni me hote hai)". Learned Counsel further submitted that the PW7 prosecutrix further stated in her crossexamination that she earlier made statement under the pressure of Police. Learned Counsel further submitted that PW7 - prosecutrix was further crossexamined by the Learned Addl. PP and she denied all the charges and allegations made against accused Ajay @ Kalia and gave a clean chit to the accused Ajay 22 of 130 23 FIR No. 177/11 PS - Narela @ Kalia. No incriminating evidence was brought out by the Learned Addl. PP from the said crossexamination of prosecutrix. Learned Counsel for accused Ajay @ Kalia further submitted that the false complaint was made by the father of the prosecutrix wrongly and falsely, when no offence whatsoever was committed by the accused Ajay @ Kalia as he neither abducted nor committed rape with the prosecutrix. Rather the prosecutrix and accused Ajay @ Kalia solemnized the marriage of their sweet will and are thus legally wedded husband and wife and in her examinationinchief, the prosecutrix has already reiterated these facts and as such the prosecution has failed to prove its case beyond all reasonable doubts and since the accused Ajay @ Kalia and prosecutrix are legally wedded husband and wife and are living together happily, therefore, the accused Ajay @ Kalia is entitled to be acquitted of the said charge. Learned Counsel further submitted that other prosecution witnesses also did not support the story and charges of the prosecution. Even PW1 Dr. Anima in her crossexamination admitted that the injuries mentioned on general examination can be caused on the person of married women because of wearing bangles and can be self inflicted. She further said the she cannot say that the injuries 23 of 130 24 FIR No. 177/11 PS - Narela on the legs are self inflicted as they can be self inflicted as these are accessible site of the body. However PW1 in her further cross examination said "I do not recollect as to whether the exhibits were sealed with the Hospital seal but must have been sealed with the Hospital seal" She further said "I do not remember the impression of the seal or as to how many seals impressions were put on each of the exhibits". Learned Counsel further submitted that prosecution also examined PW3 Smt. Birmla, PRT, MCD School, who brought admission register proof of admission of one girl (name withheld) d/o Sh. Rajpal and it was alleged that the age (date of birth) of said girl (name withheld) was 17/11/1994 as per school record. Learned Counsel submitted that the said admission register and record of date of birth as produced by the prosecution through PW3 does not pertain to the prosecutrix as according to the own case of the prosecution the name of the prosecutrix is (name withheld) and her father's name is Raj Singh (PW5), while the said admission register pertains to some other girl namely prosecutrix (name withheld) d/o Sh. Rajpal. Thus the prosecution has miserably failed to prove the age of the prosecutrix through evidence. Moreover, the said witness PW3 stated in her cross 24 of 130 25 FIR No. 177/11 PS - Narela examination that she has no personal knowledge regarding admission of prosecutrix (name withheld). Learned Counsel further submitted that merely producing the government school record does not have the evidentiary value regarding the age of prosecutrix. Learned Counsel further submitted that even the PW10 SI Rajbir Singh, who is the investigating officer, in his examinationinchief said that on 21/04/2011 complainant came at the Police Station and lodged a report regarding the kidnapping of her daughter (name withheld), aged around 17 years. Learned Counsel for accused Ajay @ Kalia further submitted that PW4 Constable Gopi Chand, in his crossexamination has deposed that, they left the Police Station for Railway Station at about 2:00 p.m. in the afternoon and it took about 3540 minutes to reach at Railway Station. On the other hand, as per the MLC of the prosecutrix prosecutrix (name withheld) at Satyavadi Raja Harish Chandra Hospital, Narela, Delhi, the prosecutrix was brought at the hospital on 24/04/2011 at 1:30 p.m. which proves that the testimony of PW4 was not trustworthy to support and prove the sequence and events as made for the arrest of the accused Ajay @ Kalia. Learned Counsel further submitted that even the accused Ajay @ Kalia was medically examined as per MLC Sheet on dated 25 of 130 26 FIR No. 177/11 PS - Narela 24/04/2011 at 1:00 p.m. at the same Hospital. Learned Counsel further submitted that similarly PW10 SI Rajbir Singh said in his cross examination that "About 2:00 p.m. with Raj Singh, father of prosecutrix we reached at the Narela Railway Station." He further said "After about half to one hour of our reaching to Narela Railway Station, the prosecutrix was identified by her father". But on the other hand the said MLCs and hospital records speaks otherwise, when the accused persons as well as prosecutrix were medically examined between 1:00 p.m. and 1:30 p.m. Learned Counsel further submitted that PW6 Raj Singh is the complainant and father of the prosecutrix and in his examinationin chief he said "My daughter was found with two persons. I do not know the name of those persons. I do not remember from which place my daughter was found." He further said 'Police has obtained my signatures on some papers". PW6 specifically stated that the accused Ajay @ Kalia and coaccused present in the Court are not the persons who were apprehended with his daughter." Even the PW6 was crossexamined by the Learned Addl. PP for State, but nothing incriminating could be derived from the said crossexamination. Even PW6 specifically denied the suggestion that the accused Ajay @ Kalia and coaccused were those 26 of 130 27 FIR No. 177/11 PS - Narela boys who were apprehended with his daughter. Learned Counsel further submitted that the story of the prosecution is also not reliable as the prosecutrix was stated to be missing from October, 2010 while DD entry was made on 21/04/2011 and PW10 - SI Rajbir Singh IO said in his crossexamination that he did not ask from complainant as to whether he had earlier lodged any complaint regarding missing of his daughter. Learned Counsel for accused Ajay @ Kalia further submitted that PW10
- SI Rajbir Singh in his crossexamination stated "It is wrong to suggest that it has come into my knowledge during the course of investigation that the prosecutrix had married with accused Ajay and was living with him of her own." The said version of Investigating Officer is completely wrong and false as it is very much mentioned in the MLC of Raja Harish Chandra Hospital, Narela, Delhi when the prosecutrix told the Doctor that she is married. Thus the investigating officer was well within the knowledge of the fact that the prosecutrix was married with the accused Ajay @ Kalia but the IO deliberately made wrong and false statement before the Court. Learned Counsel further submitted that the entire investigation is shoddy and under clouds & doubt, which is emerged from the testimony of the prosecution witnesses. Even no lady police 27 of 130 28 FIR No. 177/11 PS - Narela official was involved in the investigation nor produced in the witness box when serious false story and allegations were made by the police against innocent person. Learned Counsel further submitted that it is apparent that there has been no public or independent witness examined or produced by the prosecution while it has emerged out from the testimonies of the various prosecution witnesses that there were many persons available as it is claimed that the accused Ajay @ Kalia was arrested from Narela Railway Station which was full of crowd. Learned Counsel further submitted that there are material contradictions and flaws in the evidence of the prosecution witnesses and none of the prosecution witnesses could prove that accused Ajay @ Kalia committed the alleged offence. Accused Ajay @ Kalia has been deliberately dragged and implicated in the present false and fabricated case by the complainant in connivance and collusion of the Police/Investigating Officer who without making any proper and fair investigation falsely implicated the accused Ajay @ Kalia. Learned Counsel further submitted that there has been no evidence at all produced by the prosecution either in the charge sheet or through the witnesses examined that accused Ajay @ Kalia was in any manner concerned with the 28 of 130 29 FIR No. 177/11 PS - Narela commission of alleged offence. Learned Counsel further submitted that the role of the Investigating Officer in the registration of the present FIR and the investigation always remained under cloud as because of his active collusion and connivance with the complainant and other witnesses which is also self evident from the testimonies of the prosecution witnesses that due to his guidance, instructions and advise the complaint was lodged and due to the active connivance of the Investigating Officer accused were wrongly and malafidely dragged and implicated. The way of the investigation by the IO is self evident from the crossexamination. Learned Counsel further submitted that the prosecution has hopelessly and miserably failed to proved any of the charge against accused Ajay @ Kalia. There is no evidence to show that accused Ajay @ Kalia was involved in the commission of alleged offence. Learned Counsel further submitted that there have been exaggerated and a deliberate attempt to rope accused Ajay @ Kalia in the present false and fabricated case. Learned Counsel further submitted that accused Ajay @ Kalia is innocent and has been victimized by his involvement in this false and fabricated case and it is a fit case of acquittal of the accused Ajay @ Kalia as the prosecution 29 of 130 30 FIR No. 177/11 PS - Narela could not prove any involvement of the accused Ajay @ Kalia in the present case.
Learned Counsel for accused Ajay @ Kalia referred to the cases and are reported as Alamelu & Anr. Vs. State, AIR 2011 SC 715; State of UP Vs. Jai Parkash, VII (2007) SLT 220; Pardeep @ Sonu Vs. State of Delhi, 2011 II AD (Crl.) (DHC) 503 and Rajesh Patel Vs. State of Jharkhand, 2013 (2) JCC 1260.
9. While the Learned Addl. PP for the State, on the other hand, submitted that the testimonies of the prosecution witnesses are cogent and consistent and the contradictions and discrepancies as pointed out are minor and not the material one's and do not affect the credibility of the witnesses and the prosecution has proved its case beyond reasonable doubt.
10. I have heard Ms. Nimmi Sisodia, Learned Addl. PP for the State and Sh. Vikash Badesara, Learned Counsel for accused Sunder and Sh. Lalit Ohlan, Learned Counsel for the accused Ajay @ Kalia and 30 of 130 31 FIR No. 177/11 PS - Narela have also carefully perused the entire record.
11. The charge for the offences punishable u/s 363/366/376 IPC against the accused Ajay @ Kalia is that in the month of October, 2010 he took prosecutrix (name withheld) D/o Sh. Raj Singh at his house situated at Village Dhokka, PS - Badara, District - Bhiwani, Haryana, with intent that she may be or likely to be sexually assaulted and he repeatedly committed rape on the person of prosecutrix without her free will or consent.
Further, the charge for the offences punishable u/s 376/34 r/w section 109 IPC against the accused Ajay @ Kalia and Sunder is that in the month of October, 2010, accused Ajay @ Kalia took prosecutrix (name withheld) D/o Sh. Raj Singh at his house at Village Dhokka, PS - Badara, District - Bhiwani, Haryana, and committed rape repeatedly on the person of prosecutrix without her free will or consent and thereafter, in furtherance of common intention, accused Ajay @ Kalia abetted and allowed coaccused Sunder to take the prosecutrix at his Village - Haroda PS - Badara, Bhiwani, Haryana and accused Sunder committed rape on the person of prosecutrix without her consent or free will.
31 of 130 32 FIR No. 177/11 PS - Narela
12. It is to be mentioned that as a matter of prudence, in order to avoid any little alteration in the spirit and essence of the depositions of the material witnesses, during the process of appreciation of evidence at some places their part of depositions have been reproduced, in the interest of justice.
AGE OF THE PROSECUTRIX
13. PW6 - Raj Singh, father of the prosecutrix in his examinationinchief recorded on 14/02/2013 has deposed that, prosecutrix (name withheld) is his daughter and now she is about 18 years of age.
PW7 - prosecutrix in her examinationinchief recorded on 14/02/2013 has deposed that, she was 18 years of age when she voluntarily married with Ajay with her own free will.
PW3 - Smt. Birmla, PRT, MCD School at Panna Paposian
- I, Narela, Delhi - 40 has deposed that she has brought admission register of prosecutrix (name withheld) D/o Rajpal. As per record, prosecutrix (name withheld) was admitted in aforementioned School on 32 of 130 33 FIR No. 177/11 PS - Narela 06/07/2000 and she has passed 5th class from School at the time of her admission in School (her date of birth) was 17/11/1994. She has also brought the admission form submitted up by mother of prosecutrix (name withheld) namely Smt. Santosh. At the time of admission, Smt. Santosh had submitted a document in the form of an affidavit in proof of her age. She has brought original Admission Register, Admission Form and Affidavit and copy of the same are Ex. PW3/A and PW3/B and Ex. PW3/C respectively (OSR). She has also seen the copy of School Leaving Certificate of prosecutrix (name withheld) and the same has been issued from their School and the same is Ex. PW3/D which bears the signature of the then Principal at point 'A' who has retired now.
During her crossexamination on behalf of the Learned Counsel for the accused, PW3 - Smt. Birmala has deposed that, "It is correct that I do not have any personal knowledge regarding admission of prosecutrix (name withheld)".
There is nothing in the crossexamination of PW3 - Smt. Birmla so as to impeach her creditworthiness. Nor any evidence to the contrary has been produced or proved on the record on behalf of the accused.
33 of 130 34 FIR No. 177/11 PS - Narela I have carefully perused and analysed the testimony of PW3
- Smt. Birmala and the copies of original admission register, admission form and affidavit Ex. PW3/A, Ex. PW3/B and Ex. PW3/C respectively proved by her. On careful perusal of the same documents, it is clearly indicated and reflected that the date of the birth of the prosecutrix (name withheld) is 17/11/1994.
In the circumstances, it stands established on the record that the date of the birth of the prosecutrix is 17/11/1994.
As the date of alleged incident is in the month of October, 2010 and the date of birth of prosecutrix is 17/11/1994, on simple arithmetical calculation, the age of prosecutrix comes to 15 years, 10 months and 14 days as on the date of incident in the month of October, 2010.
In view of above and in the circumstances, it stands established on record that PW7 prosecutrix was aged 15 years, 10 34 of 130 35 FIR No. 177/11 PS - Narela months and 14 days as on the date of alleged incident in the month of October, 2010.
The Hon'ble Supreme Court in case State of Maharashtra Vs. Gajanan Hemant Janardhan Wankdhede (2008) 8 SCC 38 has held as under : "13. .....On the basis of the evidence of the Headmaster and the original school leaving certificate and the school register which were produced the High Court came to abrupt conclusion that normally for various reasons the guardians to understate the age of their children at the time of admission in the school. There was no material or basis for coming to this conclusion. The High Court in the absence of any evidence to the contrary should not have come to hold that the date of birth of the prosecutrix was not established and the school leaving certificate and the school register are not conclusive.
14. Interestingly, no question was put to the victim in cross examination about the date of birth. The High Court also noted that no document was produced at the time of admission and a horoscope was purportedly produced. There is no requirement that at the time of admission documents are to be produced as regards the age of the student....."
14. Learned Counsel for accused Ajay @ Kalia submitted that PW7 - prosecutrix in her examinationinchief recorded on 14/02/2013 35 of 130 36 FIR No. 177/11 PS - Narela has deposed that, she was 18 years of age when she voluntarily married with Ajay with her own free will.
I have carefully perused and analysed the evidence on record.
With regard to the age of the prosecutrix, as to what has been discussed hereinabove under the heading "Age of the Prosecutrix", at the cost of repetition, the age of the prosecutrix stands established on record that PW7 prosecutrix was aged 15 years, 10 months and 14 days as on the date of alleged incident in the month of October, 2010.
In case "Jarnail Singh Vs. State of Haryana", 2013 VII AD (S.C.) 313 in para 20, the Hon'ble Supreme Court has held that, it would be just and appropriate to apply Rule 12 of Juvenile Justice (Care and Protection of Children) Rules, 2007 to determine the age of the prosecutrix.
In the instant case, since the date of birth certificate 36 of 130 37 FIR No. 177/11 PS - Narela from the School (Other than a Play School), first attended by PW1 - prosecutrix, as provided under Rule 12 (3)(a)(ii) is available, therefore, the same is adopted as the highest rated first available basis in terms of the scheme of options under clause (a) of Rule 12 (3) of Juvenile Justice (Care and Protection of Children) Rules, 2007.
It is pertinent to reproduce para 20 of Jarnail Singh's case (Supra) of the Hon'ble Supreme Court which reads as under : "On the issue of determination of age of a minor, one only needs to make a reference to Rule 12 of the Juvenile Justice (Care and Protection of Children) Rules, 2007 (hereinafter referred to as the 2007 Rules). The aforestated 2007 Rules have been framed under Section 68(1) of the Juvenile Justice (Care and Protection of Children) Rules, 2000. Rule 12 referred to hereinabove reads as under : "12. Procedure to be followed in determination of Age.? (1) In every conflict with law, the Court or the Board or as the case may be the Committee referred to in rule 19 of these rules shall determine the age of such juvenile or child or a juvenile in conflict with law within a period of thirty days from the date of making of the application for that purpose.
(2) The Court or the Board or as the case may be the Committee shall 37 of 130 38 FIR No. 177/11 PS - Narela decide the juvenility or otherwise of the juvenile or the child or as the case may be the juvenile in conflict with law, prima facie on the basis of physical appearance or documents, if available, and send him to the observation home or in jail.
(3) In every case concerning a child or juvenile in conflict with law, the age determination inquiry shall be conducted by the Court or the Board or, as the case may be, the Committee by seeking evidence by obtaining
(a) (i) the matriculation or equivalent certificates, if available; and in the absence whereof;
(ii) the date of birth certificate from the school (other than a play school) first attended; and in the absence whereof;
(iii) the birth certificate given by a corporation or a municipal authority or a panchayat;
(b) and only in the absence of either (i), (ii) or (iii) of clause (a) above, the medical opinion will be sought from a duly constituted Medical Board,which will declare the age of the juvenile or child. In case exact assessment of the age cannot be done, the Court or the Board or, as the case may be, the Committee, for the reasons to be recorded by them, may, if considered necessary, give benefit to the child or juvenile by considering his/her age on lower side within the margin of one year.
and, while passing orders in such case shall, after taking into consideration such evidence as may be available, or the medical opinion, as the case may be, record a finding in respect of his age and either of the evidence specified in any of the clauses (a) (i), (ii), (iii) or in the absence whereof, clause (b) shall be the conclusive proof of the age as regards such child or the juvenile in conflict with law.
38 of 130 39 FIR No. 177/11 PS - Narela (4) If the age of a juvenile or child or the juvenile in conflict with law is found to be below 18 years on the date of offence, on the basis of any of the conclusive proof specified in subrule (3), the Court or the Board or as the case may be the Committee shall in writing pass an order stating the age and declaring the status of juvenility or otherwise, for the purpose of the Act and these rules a copy of the order shall be given to such juvenile or the person concerned.
(5) Save and except where, further inquiry or otherwise is required, inter alia, in terms of section 7A, section 64 of the Act and these rules, no further inquiry shall be conducted by the Court or the Board after examining and obtaining the certificate or any other documentary proof referred to in sub rule (3) of this rule.
(6) The provisions contained in this rule shall also apply to those disposed off cases, where the status of juvenility has not been determined in accordance with the provisions contained in subrule (3) and the Act, requiring dispensation of the sentence under the Act for passing appropriate order in the interest of the juvenile in conflict with law."
Even though Rule 12 is strictly applicable only to determine the age of a child in conflict with law, we are of the view that the aforesaid statutory provision should be the basis for determining age, even for a child who is a victim of crime. For, in our view, there is hardly any difference in so far as the issue of minority is concerned, between a child in conflict with law, and a child who is a victim of crime. Therefore, in out considered opinion, it would be just and appropriate to apply Rule 12 of the 2007 Rules, to determine the age of 39 of 130 40 FIR No. 177/11 PS - Narela the prosecutrix VWPW6. The manner of determining age conclusively, has been expressed in subrule (3) of Rule 12 extracted above. Under the aforesaid provision, the age of a child is ascertained, by adopting the first available basis, out of a number of options postulated in Rule 12(3). If, in the scheme of options under Rule 12(3), an option is expressed in a preceding clause, it has overriding effect over an option expressed in a subsequent clause. The highest rated option available, would conclusively determine the age of a minor. In the scheme of Rule 12(3), matriculation (or equivalent) certificate of the concerned child, is the highest rated option. In case, the said certificate is available, no other evidence can be relied upon. Only in the absence of the said certificate, Rule 12(3), envisages consideration of the date of birth entered, in the school first attended by the child. In case such an entry of date is available, the date of birth depicted therein is liable to be treated as final and conclusive, and no other material is to be relied upon. Only in the absence of such entry, Rule 12(3) postulates reliance on a birth certificate issued by a corporation or a municipal authority or a panchayat. Yet again, if such a certificate is available, then no other material whatsoever is to be taken into consideration, for determining the age of the child concerned, as the said certificate would conclusively determine the age of the child. It is only in the absence of any of the aforesaid, that Rule 12(3) postulates the determination of age of the concerned child, on the basis of medical opinion."
In the circumstances, there is no substance in the plea so raised by the Learned Counsel for the accused.
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15. Learned Counsel for accused Ajay @ Kalia submitted that the entire investigation is shoddy and under clouds & doubt, which is emerged from the testimony of the prosecution witnesses. Even no lady police official was involved in the investigation nor produced in the witness box when serious false story and allegations were made by the police against innocent person.
I have carefully perused and analysed the evidence on record.
The testimony of PW10 - SI Rajbir Singh IO has been discussed and detailed hereinbefore. On careful perusal and analysis of the testimony of PW10, it is found to be clear, cogent and a graphic details of the steps which he took during the course of investigation. There is nothing in his statement to suggest that he had any animus against the accused to falsely implicate them in the case.
At the cost of repetition, PW10 - Rajbir Singh in his examinationinchief has deposed that on 21/04/2011, he was posted as Sub Inspector in PS Narela. On that day, Complainant Raj Singh came in the Police Station and lodged a report regarding the kidnapping of his 41 of 130 42 FIR No. 177/11 PS - Narela daughter/prosecutrix (name withheld), age around 17 years and DD No. 19, the copy of which is already exhibited as Ex. PW2/A was lodged. On the basis of DD No. 19, the present FIR, the copy of which is already exhibited as Ex. PW2/D was registered. After registration of FIR, the copy of FIR was handed over to him and investigation was marked to him. He reached at the spot i.e. House No. 1305, Panapaposiya, Narela, Delhi and he made inquiries from the area. He searched for the prosecutrix but not found. On 24/04/2011, he alongwith Raj Singh and Constable Gopi Chand reached at Railway Station Narela on the basis of secret information and from the Railway Station on the identification of Raj Singh, prosecutrix (name withheld) was apprehended. Two boys were also with prosecutrix (name withheld) and who tried to run away but they were apprehended. The name of the boys were revealed as Sunder and Ajay @ Kalia. The girl/prosecutrix (name withheld) was taken into possession vide memo Ex. PW4/A, bearing his signature at point 'A'. Accused Sunder and Ajay were interrogated and arrested vide arrest memo Ex. PW4/B and Ex. PW4/C, bearing his signature at point 'B', their personal search was conducted vide memo Ex. PW4/D & Ex. PW4/E, bearing his signature at point 'B'. They both made disclosure 42 of 130 43 FIR No. 177/11 PS - Narela statement Ex. PW4/F & Ex. PW4/G, bearing his signature at point 'B'. Accused and prosecutrix were taken in SRHC Hospital where they were medically examined and after their medical examination, Doctor handed over the sealed pullinda containing exhibits which were seized vide memo Ex. PW4/H, bearing his signature at point 'B'. Accused were brought to Police Station and sent to lockup. On 25/04/2011, accused were produced in the Court and were sent to JC. He moved an application for recording the statement of prosecutrix u/s 164 Cr.P.C. and his application is Ex. PW5/A and statement of prosecutrix (name withheld) was recorded and he obtained the proceedings vide his application Ex. PW5/F, bearing his signature at point 'A'. He recorded the statement of witnesses. On 07/06/2011, the exhibits were deposited in the FSL. He also collected the age proof of the prosecutrix which was seized by him vide memo Ex. PW10/A, bearing his signature at point 'A'. After completing the investigation, challan was prepared and filed in the Court. Later on, FSL Result was collected and filed in the Court. He correctly identified both the accused Sunder and Ajay present in the Court.
There is nothing in the crossexamination of PW10 - SI 43 of 130 44 FIR No. 177/11 PS - Narela Rajbir Singh IO so as to impeach his creditworthiness.
So far as the plea raised by the Learned Counsel for accused Ajay @ Kala that, "no lady Police official was involved in the investigation nor produced in the witness box", is concerned, it is evident from the record that during the crossexamination of PW10 SI Rajbir IO, none of the said accused voiced their concerns or raised any apprehension regarding the non involving of any lady Police official in the investigation and for nonproduction of any lady Police official in the witness box. He was the only competent witness who would have been fully capable of explaining correctly the factual situation. For such failure, accused are to blame themselves and none else.
Recently in case 'Mahavir Singh Vs. State of Haryana', (2014) 6 SCC 716, the Hon'ble Supreme Court has observed that it is settled legal proposition that in case the question is not put to the witness in crossexamination who could furnish explanation on a particular issue, the correctness or legality of the said fact/issue could not be raised.
44 of 130 45 FIR No. 177/11 PS - Narela Moreover, non involving of any lady Police official in the investigation and for nonproduction of any lady Police official in the witness box does not falsify the case of the prosecution which is otherwise proved on record by clear, cogent and convincing evidence.
In case 'Narain Singh Vs. State' 2013 I AD (DELHI) 685, the Hon'ble Delhi High Court after referring to the cases, 'Pal Singh Vs. State of U.P.', (1979) 4 SCC 345, 'State of U.P. Vs. Anil Singh', AIR 1988 SC 1998 and 'Krishna Mochi Vs. State of Bihar', 2002 IV AD (S.C.) 45 held that, once it is held that the prosecution evidence is reliable and trustworthy and proves the offence, failure to examine other witnesses is not fatal. Nonexamination of further witnesses does not affect the credibility of the witnesses relied upon. It is quality of the evidence and not the number of witnesses that matters.
It is well settled in law that nonexamination of the material witness is not a mathematical formula for discarding the weight of the testimony available on record howsoever natural, trustworthy and 45 of 130 46 FIR No. 177/11 PS - Narela convincing it may be (Ref. State of H.P. Vs. Gian Chand, (2001) 6 SCC 71).
In case Takhaji Hiraji Vs Thakore Kubersing Chamansing, 2001 IV AD (S.C.) 393, the Hon'ble Supreme Court has held that : ".....If the witnesses already examined are reliable and the testimony coming from their mouth is unimpeachable the Court can safely act upon it uninfluenced by the factum of nonexamination of other witnesses."
In the circumstances, there is no substance in the plea so raised by the Learned Counsel for the accused. MEDICAL EVIDENCE OF THE PROSECUTRIX
16. PW11 - Dr. Awadesh, Medical Officer, SRHC Hospital, Narela Delhi has deposed that on 24/04/2011, he was posted at SRHC Hospital, Narela as CMO. On that day, patient/prosecutrix (name withheld), D/o Raj Singh aged about 18 years female was brought by SI Rajbir of PS Narela at about 1:00 p.m. with the alleged history of 46 of 130 47 FIR No. 177/11 PS - Narela sexual assault. On examination, the patient was conscious and oriented. Her vitals were found normal. No abnormality was detected in her chest, CVS and P/A. He referred her to SR Gynae and for Psychiatric evaluation. The detailed report prepared by him on MLC is Ex. PW11/A which is in his handwriting and bears his signatures at point 'X'.
Despite grant of opportunity, PW11 - Dr. Awadesh was not crossexamined on behalf of the accused.
PW1 - Dr. Anima Dayal, Senior Resident, Satyawati Raja Harish Chand Hospital, Narela, Delhi has deposed that on 24/04/2011, at about 1:00 p.m., one patient/prosecutrix (name withheld) D/o Sh. Raj Singh was brought to the above mentioned Hospital in Casualty Ward and after preliminary examination, she was referred to SR, Gynae. On the day, she was working as SR, Gynae and she examined the patient/prosecutrix (name withheld) who was well oriented in time, place and person. UPT Negative. On general examination patient was having abrasion .5 X .5 cm over right hand and abrasion .5 X .5 cm over right leg and left leg. Per abdomen of the patient was soft. No 47 of 130 48 FIR No. 177/11 PS - Narela tenderness bowel sounds present. Per speculum examination cervix and vagina were healthy. On per vagina examination, hymen ruptured. Uterus normal size, anteverted. She has also collected samples and sealed the same which were given to the Investigating Officer. Three bags Sl. No. 1 to 3 were also sealed and handed over to SI Rajbir. The MLC is Ex. PW1/A and her examination noting is from 'A' to 'A1' on the MLC Ex. PW1/A and signed by her at point 'B'.
PW13 - Dr. Hema Mahawan, Specialist Obs. & Gynae, SRHC Hospital, Narela, Delhi has deposed that she has been deputed in this case by the 'MS' of the Hospital to depose on behalf of Dr. Anima Dayal who had since left the Hospital. She has seen patient consent form, medical history form, form3 etc. in respect of patient/prosecutrix (name withheld), which are the part of the sexual assault forensic kit, the same are filled up in the handwriting of Dr. Anima Dayal and bearing her signatures at Points 'A'. The same are Ex. PW13/A (colly). He is conversant with the handwriting and signature of Dr. Anima Dayal as he has seen her while writing and signing during the course of his duties.
There is nothing in the crossexamination of PW1 - Dr. 48 of 130 49 FIR No. 177/11 PS - Narela Anima Dayal and PW13 - Dr. Hema Mahawan so as to impeach their creditworthiness.
In view of above and in the circumstances, the medical examination vide MLC Ex. PW11/A and the gynaecological examination from point 'A' to 'A1' on the MLC Ex. PW1/A and the consent form, medical history form, form - 3 Ex. PW13/A (colly.) filled up in the handwriting of Dr. Anima Dayal (PW1) of PW7 - prosecutrix) stands proved on the record.
VIRILITY OF THE ACCUSED SUNDER
17. PW11 - Dr. Awadesh, Medical Officer, SRHC Hospital, Narela Delhi has deposed that on 24/04/2011, he examined patient Sunder s/o Shubh Ram aged about 22 years male at about 1:00 p.m. with the alleged history of accused of sexual assault. On examination patient was conscious and oriented. No abnormality was detected in his chest, CVS and P/A and his vitals were found normal. From the examination of patient, it could not be said that patient was not able to (do) sexual intercourse. His blood sample and undergarments were sealed and 49 of 130 50 FIR No. 177/11 PS - Narela handed over to IO. The detailed report prepared by him in this respect is Ex. PW11/B which is in his handwriting and bears his signatures at point 'A'.
Despite grant of opportunity, PW11 - Dr. Awadesh was not crossexamined on behalf of the accused.
In view of above and in the circumstances, it stands proved on the record that accused Sunder was capable of performing sexual intercourse.
VIRILITY OF THE ACCUSED AJAY @ KALIA
18. PW12 - Dr. Rajesh, Casualty Medical Officer, SRHC Hospital, Narela, Delhi has deposed that on 25/04/2011, he was posted at SRHC Hospital, Narela as CMO. On that day, he examined patient Ajay s/o Hawa Singh aged about 24 years male at about 12:45 p.m. On examination patient was conscious and oriented. No abnormality was detected in his chest, CVS and P/A and his vitals were found normal. From the examination of patient, it could not be said that patient was not able to (do) sexual intercourse. The detailed report prepared by him in 50 of 130 51 FIR No. 177/11 PS - Narela this respect is Ex. PW12/A bearing his signatures at point 'A'.
PW11 - Dr. Awadesh, Medical Officer, SRHC Hospital, Narela Delhi has deposed that on 24/04/2011, he examined patient Ajay s/o Hawa Singh aged about 24 years male at about 1:00 p.m. for medical examination. On examination patient was conscious and oriented. No abnormality was detected in his chest, CVS and P/A and his vitals were found normal. The detailed report prepared by Junior Resident namely Dr. Bijoy in this respect is Ex. PW11/C under his supervision in his handwriting and bears his signatures at point 'A', which he identify. As per Ex. PW11/C, the patient was having scaly and dryness over bilateral palm and no fresh external injury was seen. Dr. Bijoy has left the services of the Hospital and his present whereabouts are not known. He identify his signatures as he has seen him signing and writing during the ordinary course of his duties.
Despite grant of opportunity and PW12 - Dr. Rajesh and PW11 - Dr. Awadesh were not crossexamined on behalf of the accused.
In view of above and in the circumstances, it stands 51 of 130 52 FIR No. 177/11 PS - Narela proved on the record that accused Ajay @ Kalia was capable of performing sexual intercourse.
BIOLOGICAL AND SEROLOGICAL EVIDENCE
19. PW8 - Sh. Indresh Kumar Mishra, Senior Scientific Officer (Biology) FSL, Rohini, Delhi, who proved the biological and serological reports Ex. PW8/A and Ex. PW8/B respectively signed by him at points 'A'.
As per biological report Ex. PW8/A the description of articles contained in parcel and result of analysis reads as under : DESCRIPTION OF ARTICLES CONTAINED IN PARCEL Parcel '1' : One sealed cloth parcel sealed with the seal of "SRHC HOSPITAL NARELA DELHI" containing exhibits '1', kept in a tube.
Exhibit '1' : Dark brown foul smelling liquid, described as 'Blood sample'.
Parcel '2' : One sealed cloth parcel sealed with the seal of "SRHC HOSPITAL NARELA DELHI" containing exhibits '2'.
Exhibit '2' : One underwear.
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Parcel '3' : One sealed envelope sealed with the seal of
"SRHC HOSPITAL NARELA DELHI" containing exhibits '3a', '3b', '3c', '3d' & '3e'.
Exhibit '3a' : One chunni. Exhibit '3b' : One lady shirt. Exhibit '3c' : One salwar. Exhibit '3d' : One brassier. Exhibit '3e' : One underwear. Parcel '4' : One sealed envelope sealed with the seal of
"SRHC HOSPITAL NARELA DELHI". Parcel '4' sent in original to Chemistry Division on 02/02/2012.
One sealed envelop sealed with the seal of "SKP FSL DELHI" received from Chemistry Division on 05/09/2012 containing exhibit '4a', '4b', '4c', '4d', '4e', '4f', '4g', '4h', '4i', kept into separate envelopes sealed with the seal of "SKP FSL DELHI"
Exhibit '4a' : Cotton wool swab on a plastic stick described as oral swab.
Exhibit '4b' : Cotton wool swab on a plastic stick described as oral swab.
Exhibit '4c' : Bunch of hairs described as Head hair combing. Exhibit '4d' : Few strands of hair described as scalp hair. Exhibit '4e' : Few nail clippings described as Nail clipping (left). Exhibit '4f' : Few nail clippings described as Nail clipping (right). Exhibit '4g' : Dark brown foul smelling liquid kept in a tube described as Blood.
Exhibit '4h' : Dark brown foul smelling liquid kept in a tube 53 of 130 54 FIR No. 177/11 PS - Narela described as Blood.
Exhibit '4i' : Dark brown foul smelling liquid kept in a tube described as Blood.
Parcel '5' : One sealed envelope sealed with the seal of "SRHC HOSPITAL NARELA DELHI" containing exhibits '5a', '5b', '5c', '5d', '5e', '5f', '5g', '5h', '5i', '5j', '5k', '5l(i)' & '5l(ii)'.
Exhibit '5a' : Few strands of hair described as 'Pubic hair clipping'. Exhibit '5b' : One empty envelope described as 'Pubic hair combing'. Hair could not be detected in envelope. Exhibit '5c' : Cotton wool swab on a plastic stick described as 'vulval swab'.
Exhibit '5d' : Cotton wool swab on a plastic stick described as 'vulval swab'.
Exhibit '5e' : Cotton wool swab on a plastic stick described as 'vaginal swab anterior'.
Exhibit '5f' : Cotton wool swab on a plastic stick described as 'vaginal swab posterior'.
Exhibit '5g' : Cotton wool swab on a plastic stick described as 'vaginal swab lateral'.
Exhibit '5h' : Cotton wool swab on a plastic stick described as 'vaginal swab lateral'.
Exhibit '5i' : Liquid material kept in a plastic container. Exhibit '5j' : Cotton wool swab on a plastic stick described as 'anal swab'.
Exhibit '5k' : Cotton wool swab on a plastic stick described as 'anal swab'.
Exhibit '5l(i)': Two micro slides having faint whitish smears
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& '5l(ii) described as 'vaginal smear'.
RESULT OF ANALYSIS
1. Blood was detected on exhibit '1', '4g', '4h & '4i'.
2. Human semen was detected on exhibits '3e', '5e', '5f', '5g' & 5l(i).
3. Semen could not be detected on exhibits '2', '3a', '3b', '3c', '3d', '4a', '4b', '4c', '4d', '4e', '4f', '5a', '5c', '5d', '5h', '5i', '5j', '5k' & '5l(ii)'.
4. Report of serological analysis in original is attached herewith. NOTE :
i) With regard to query no. 4 report in original from Chemistry Division is attached herewith.
ii) Remnants of the exhibits have been sealed with the seal of 'IKM FSL DELHI' The serological report Ex. PW8/B reads as under: Exhibits Species of origin ABO Grouping/Remarks Blood Stains : Blood sample was putrefied hence no opinion '1' Blood Sample '4g' Blood Sample Blood sample was putrefied hence no opinion '4h' Blood Sample Blood sample was putrefied hence no opinion '4i' Blood Sample Blood sample was putrefied hence no opinion Semen Stains : '3e' Underwear 55 of 130 56 FIR No. 177/11 PS - Narela Area I No reaction Area II No reaction '5e' Cotton wool swab No reaction '5f' Cotton wool swab No reaction '5g' Cotton wool swab No reaction As per the biological report Ex. PW8/A, with regard to the description of the articles contained in the parcels, it is noticed that Parcel Nos. 1 & 2 belong to accused Sunder which was seized vide seizure memo Ex. PW4/H dated 24/04/2011, parcel nos. 3, 4 & 5 belong to the prosecutrix which were seized vide seizure memo Ex.
PW4/H dated 24/04/2011.
On careful perusal and analysis of the biological and serological evidence on record, it clearly shows that blood was detected on exhibit '1' (Blood sample of accused Sunder), exhibit '4g' (Blood sample of the prosecutrix), exhibit '4h' (Blood sample of prosecutrix) and exhibit '4i' (Blood sample of prosecutrix); Human semen was detected on exhibit '3e' (Underwear of the prosecutrix), exhibit '5e' (Vaginal swab anterior of the prosecutrix), exhibit '5f' (Vaginal 56 of 130 57 FIR No. 177/11 PS - Narela swab posterior of the prosecutrix), exhibit '5g' (Vaginal swab lateral of the prosecutrix) and exhibit '5l(i)' (Vaginal smear of the prosecutrix) and semen could not be detected on exhibit '2' (Underwear of the accused Sunder), exhibit '3a' (Chunni of the prosecutrix), exhibit '3b' (Lady shirt of the prosecutrix), exhibit '3c' (Salwar of the prosecutrix), exhibit '3d' (Brassier of the prosecutrix), exhibit '4a' (Oral swab of the prosecutrix), exhibit '4b' (Oral swab of the prosecutrix), exhibit '4c' (Head hair combing of the prosecutrix), exhibit '4d' (Scalp hair of the prosecutrix), exhibit '4e' (Nail clipping (left) of the prosecutrix), exhibit '4f' (Nail clipping (right) of the prosecutrix), exhibit '5a' (Pubic hair clipping of the prosecutrix), exhibit '5c' (Vulval swab of the prosecutrix), exhibit '5d' (Vulval swab of the prosecutrix), exhibit '5h' (Vaginal swab lateral of the prosecutrix), exhibit '5i' (Liquid material kept in a container of the prosecutrix), exhibit '5j' (Anal swab of the prosecutrix), exhibit '5k' (Anal swab of the prosecutrix) and exhibit '5l(ii)' (Vaginal smear of the prosecutrix). As per the serological report Ex. PW8/B 'Sample was putrefied hence no opinion' could be given on the exhibit '1' (Blood Sample of accused Sunder), exhibit '4g' (Blood Sample of prosecutrix), exhibit '4h' (Blood Sample of prosecutrix) and 57 of 130 58 FIR No. 177/11 PS - Narela exhibit '4i' (Blood Sample of prosecutrix).
As per the biological report Ex. PW8/A, prosecution has discharged its initial burden of proving the presence of Human semen on exhibit '3e' (Underwear of the prosecutrix seized vide seizure memo Ex. PW4/H), exhibit '5e' (Vaginal swab anterior of the prosecutrix seized vide seizure memo Ex. PW4/H), exhibit '5f' (Vaginal swab posterior of the prosecutrix seized vide seizure memo Ex. PW4/H), exhibit '5g' (Vaginal swab lateral of the prosecutrix seized vide seizure memo Ex. PW4/H) and exhibit '5l(i)' (Vaginal smear of the prosecutrix seized vide seizure memo Ex. PW4/H). Accused Sunder was under an obligation to explain how and under what circumstances, the Human semen came to be present on the said exhibits '3e', '5e', '5f', '5g' and 5l(i) as detailed hereinabove. The absence of such an explanation both in the section 313 Cr.P.C. statement of the accused Sunder and his omission to lead any evidence in this regard and his complete denial becomes an additional link in the prosecution case.
58 of 130 59 FIR No. 177/11 PS - Narela FORENSIC EVIDENCE (CHEMICAL)
20. As per the ordersheet dated 04/03/2014, Learned Addl. PP for the State tendered the FSL Report dated 29/05/2012 in evidence which was not opposed by the Learned Counsel for accused Ajay @ Kalia as well as by accused Sunder which is Ex. PZ.
As per Forensic Evidence (Chemical) Ex. PZ the description of articles contained in parcel and result of analysis reads as under : DESCRIPTION OF ARTICLES CONTAINED IN PARCEL No. of No. of Seals & Description of Parcels / Exhibits Parcels / Seal Exhibits Impression Parcel 4 Four seals of One sealed parcel found to contain exhibits SRHC '4A', '4B', '4C', '4D', '4E', '4F', '4G', '4H' & HOSPITAL '4I'.
NARELA DELHI Exhibit One paper envelope tied with leucoplast 59 of 130 60 FIR No. 177/11 PS - Narela '4A' labelled as "prosecutrix (name withheld)"
MLC No. 419/11 (2A) "ORAL SWAB".
Exhibit - One paper envelope tied with leucoplast '4B' labelled as "prosecutrix (name withheld)"
MLC No. 419/11 (2A) "ORAL SWAB".
Exhibit One paper envelope tied with leucoplast '4C' labelled as "prosecutrix (name withheld)"
MLC No. 419/11 (2F) "HEAD HAIR COMBING".
Exhibit One small cloth parcel labelled as
'4D' "prosecutrix (name withheld)" MLC No.
419/11 (2G) "SCALP HAIR".
Exhibit One small cloth parcel labelled as
'4E' "prosecutrix (name withheld)" MLC No.
419/11 (2H) "NAIL CLIPPING (LEFT)".
Exhibit One small paper envelope tied with
'4F' leucoplast labelled as "prosecutrix (name
withheld)" MLC No. 419/11 (2I) "NAIL
CLIPPING (RIGHT)".
Exhibit One small stoppered plastic vial labelled as
'4G' "prosecutrix (name withheld)" MLC No.
419/11 (2J) "BLOOD GROUP".
Exhibit Reddish brown coloured liquid, volume
'4H' approx. 2.5 ml stated to be blood, kept
inside small stoppered plastic vial labelled
60 of 130 61 FIR No. 177/11 PS - Narela as "prosecutrix (name withheld)" MLC No. 419/11 (2K) (clot activator).
Exhibit Reddish brown coloured liquid, volume '4I' approx. 2.0 ml stated to be blood, kept
inside small stoppered plastic vial labelled as "prosecutrix (name withheld)" MLC No. 419/11 (2K) (Sodium Fluoride EDTA).
9. Purpose of reference : For Chemical Examination & Report.
10. Dates of Examination : 08/08/2012 to 28/08/2012
11. RESULTS OF EXAMINATION REPORT On chemical, TLC and GCHS examination, ethyl and methyl alcohal, alkaloids, barbiturates, tranquilizers and pesticides could not be detected in exhibits '4H' & '4l'
12. After the examination, the remnants of the exhibits have been sealed with the seal of impression as per specimen provided below Note :
1. Exhibits 4A, 4B, 4C, 4D, 4E, 4F & 4G forwarded unexamined in original to Biology Division of FSL, Delhi alongwith remnants of exhibits 4H & 4I.
2. Results related only to exhibits tested.
3. Report shall not be reproduced except in full, without the written approval of the Director.
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4. Reference to Procedure(s) used: FSL/DELHI/CHEM/05.
As per the Forensic Report (Chemical) Ex. PZ, with regard to the description of the articles contained in the parcels, it is noticed that Parcel No. 4 belongs to the prosecutrix which was seized vide seizure memo Ex. PW4/H dated 24/04/2011.
On careful perusal and analysis of the Forensic Report (Chemical) Ex. PZ, ethyl and methyl alcohal, alkaloids, barbiturates, tranquilizers and pesticides could not be detected in exhibits '4H' & '4l', as detailed hereinabove.
21. 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 62 of 130 63 FIR No. 177/11 PS - Narela 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. 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 scrutiny and that portion of the evidence which is consistent with the case of 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 63 of 130 64 FIR No. 177/11 PS - Narela 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 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 on 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 64 of 130 65 FIR No. 177/11 PS - Narela falsus in uno falsus in omnibus, has no application in India vide 'Nisar Alli Vs. The State of Uttar Pradesh', AIR 1957 SC 366.
22. Now let the testimony of PW7 Prosecutrix be perused and analysed.
PW7 prosecutrix, in her examinationinchief has deposed which is reproduced and reads as under : "I was 18 years of age when I voluntarily married with Ajay with my own free will. Thereafter, Ajay handed over me to Sunder to whom I do not know earlier. Ajay played upon cheating upon me. I did not want to live with Sunder and I had fled from the house of Sunder and had gone to the house of Ajay and from there accused Sunder while beating me brought to his (Sunder) house and kept me confined in the room for one night and had given me beatings being in drunken stage and thereafter I fled from there. Sunder had given me severe beatings. Sunder had talked obsence (Asi Asi Bate) with me and had also committed Galat Kaam (wrong deed) with me and had established physical relations with me forcibly. I do not want to see his (Sunder) face and I have no concern with him (Sunder). At the house of Sunder many ladies have gathered and were saying to him (Sunder) as to why I had been not left at my house to which he (Sunder) stated that he will not leave me at my house. Ladies who were gathered there also saying that his (Sunder) marriage had already taken place but his wife has fled 65 of 130 66 FIR No. 177/11 PS - Narela (Uski aurat bhag gai hai) and in return of her he (Sunder) has brought me ( Uske badle mai mujhe le aaya hai). From the neighbourhood of Sunder I got made a telephone call to my Jija and my Jija telephoned my father and then Police with my father came there and I was brought to Delhi. The name of the village of accused Ajay is Dhoka. I do not know the name of the village of Sunder. Firstly Ajay was apprehended by the Police and thereafter Ajay took the Police to the house of Sunder and then he was apprehended. I was taken to Ajay by a lady who had got married me with Ajay. I was not knowing that lady who had taken me treating me as her 'Beti'. I remained with Ajay for about 5/6 months. I was medically examined in the Hospital in Delhi. My statement was also recorded before the Court (u/s 164 Cr.P.C.), the said statement is already Ex. PW5/C, bearing my signature at point 'A'. Ajay had also established physical relations with me. I can identify both the accused, if shown to me.
At this stage the wooden partition is removed. The witness pointed towards the accused Sunder and Ajay and identified them correctly.
At this stage the wooden partition is restored to its original position.
At the time of my medical examination in the Hospital, my clothes were also taken into custody. I can identify the same, if shown to me.
At this stage, MHC(M) has produced a sealed parcel no. 3 sealed with the seal of FSL. Same is opened and it found containing one Chunni, one lady shirt, one salwar, one brazier and one underwear. Witness identifies the same correctly belonging to her. The same are 66 of 130 67 FIR No. 177/11 PS - Narela collectively exhibited as Ex. P1."
From the aforesaid narration of PW7 - prosecutrix, it is clear that she was 18 years of age when she voluntarily married with Ajay with her own free will. Thereafter, Ajay handed over her to Sunder to whom she does not know earlier. Ajay played upon cheating upon her. She did not want to live with Sunder and she had fled from the house of Sunder and had gone to the house of Ajay and from there accused Sunder while beating her brought to his (Sunder) house and kept her confined in the room for one night and had given her beatings being in drunken stage and thereafter she fled from there. Sunder had given her severe beatings. Sunder had talked obsence (Asi Asi Bate) with her and had also committed Galat Kaam (wrong deed) with her and had established physical relations with her forcibly. She does not want to see his (Sunder) face and she has no concern with him (Sunder). At the house of Sunder many ladies have gathered and were saying to him (Sunder) as to why he had been not left at her house to which he (Sunder) stated that he will not leave her at her house. Ladies who were gathered there also saying that his (Sunder) marriage had already taken place but his wife has fled (Uski aurat bhag gai hai) and in return of her 67 of 130 68 FIR No. 177/11 PS - Narela he (Sunder) has brought her (Uske badle mai mujhe le aaya hai). From the neighbourhood of Sunder she got made a telephone call to her Jija and her Jija telephoned her father and then Police with her father came there and she was brought to Delhi. The name of the village of accused Ajay is Dhoka. She does not know the name of the village of Sunder. Firstly, Ajay was apprehended by the Police and thereafter Ajay took the Police to the house of Sunder and then he was apprehended. She was taken to Ajay by a lady who had got married her with Ajay. She was not knowing that lady who had taken her treating her as her 'Beti'. She remained with Ajay for about 5/6 months. She was medically examined in the Hospital in Delhi. Her statement was also recorded before the Court (u/s 164 Cr.P.C.), the said statement is already Ex. PW5/C, bearing her signature at point 'A'. Ajay had also established physical relations with her. She correctly identified both the accused present in the Court. At the time of her medical examination in the Hospital, her clothes were also taken into custody. She also identified one Chunni, one lady shirt, one salwar, one brazier and one underwear belonging to her as Ex. P1.
68 of 130 69 FIR No. 177/11 PS - Narela PW7 - prosecutrix during her crossexamination by Learned Counsel for Accused Ajay @ Kalia recorded on 14/02/2013 before lunch has deposed that : "I have come today to the court with my father from my house. It is wrong to suggest that Ajay had not given me beating during my stay with her at his house in the village. Ajay is having three brothers, mother and father who were living with him. Q. It is correct that the mother and father of the Ajay did not say anything to you during your stay with him in his house? A. Mother of Ajay told me go away from here otherwise "he (Ajay) will kill you" (Yaha se chali ja nahi to ye (Ajay) thujhe jaan se maar dega).
My father had reached at village Dhoka on the same day on which he was telephoned. I do not know the date.
Q. Did your father come alone? A. Yes.
It is correct that I had come to Delhi with my father. It is correct that thereafter I had gone to my house at Narela. I remained at my home for about ten days. Police met me at my house only. I had come with the police at Narela. Accused Ajay was not arrested in my presence. Vol. Accused was arrested by police and had come with my father. I used to do the house hold work at the house of Ajay while 69 of 130 70 FIR No. 177/11 PS - Narela staying there. Accused Ajay had not used any force (Jabardasti) with me. It is correct that Ajay maintained the relations with me as are between husband and wife ( Ajay ne wahi sambandh rakhe to pati patni me hote hai). "
PW7 - prosecutrix during her crossexamination by Learned Counsel for Accused Ajay @ Kalia recorded on 14/02/2013 after lunch has deposed that : "Q. Is it correct that accused Ajay did not send you outside his house with any one?
A. It is correct. Q. I put it to you that you and accused Ajay were living with love and affection. A. No.
It is wrong to suggest that I have made false allegations against accused Ajay at the instance of my father."
PW7 - prosecutrix during her crossexamination by Learned Counsel for Accused Sunder recorded on 14/02/2013 after lunch has deposed that : "Q. I put it to you that accused Sunder sitting across the partition has not committed any wrong act with you?
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A. It is correct.
Q. I put it to you that accused Sunder sitting across the
partition has not giving any beatings to you?
A. It is correct. Q. I put it to you that accused Sunder sitting across the
partition has not used any force (Jabardasti) upon you?
A. It is correct.
It is correct that the statement which I made earlier today was made under the pressure of police. It is correct that I had never been to the house of Sunder. It is correct that the statement which I had made before the Court u/s 164 Cr.P.C. was made under the pressure of Police."
PW7 - Prosecutrix during her reexamination, after the crossexamination by the Learned Counsel for the accused, by the Learned Addl. PP for the State, recorded after lunch on 14/02/2013 has deposed that : "We are three sisters and two brothers. Today besides my father my brother Anil has also come with me. During the lunch I had talked to my father and my brother. It is correct that my father and brother had told me during lunch that I have to change my statement. I am not aware that my father has taken Rs. 1 lac from accused Sunder. I have not stated in the morning in the manner which happened with me.
71 of 130 72 FIR No. 177/11 PS - Narela I did not say that I do not want to see the face of accused Sunder. I did not say in my statement today that Ajay had handed over me to Sunder. I did not say in my statement today that Ajay played cheating upon me. I did not say in my statement today that I did not want to live with Sunder and I had fled from the house of Sunder and gone to the house of Ajay and from there accused Sunder while beating me brought to his house and kept me confined in the room for one night and had given me beating being in drunken stage and thereafter I fled from there and Sunder had given me severe beatings to me. I did not say in my statement today that Sunder had talked obscene (asi asi batain) with me and had also committed Galat Kaam (wrong deed) with me and had established physical relations with me forcibly. I did not say in my statement today that at the house of Sunder many ladies were gathered and were saying that why I had been not left at my house to which he stated that he will not leave me at my house and ladies who were gathered there also saying that his (Sunder) marriage has already been taken place but his wife has fled and in return he has brought me.
I do not know the date when I came to know about the arrest of accused Ajay and Sunder. Vol. I came to know in the morning time. Accused Ajay and Sunder were arrested by the police as they had taken me away from Delhi (Delhi se lekar aaye the). I do not know where I was firstly kept whether at the house of Ajay or at the house of accused Sunder. It is correct that the village of Sunder is near to the village of Ajay. I do not know as to whether Sunder is the friend of Ajay or that Sunder and Ajay were knowing each other previously. It is wrong to suggest that accused Sunder attempted to hang me (confronted with portion 'A' to 'A' of the statement Mark A where it is so recorded). It is wrong to suggest that accused Sunder wanted to sell me in Rs. 5000/ (confronted with portion 'A' to 'A' of the statement Ex. PW5/C 72 of 130 73 FIR No. 177/11 PS - Narela where it is so recorded). It is wrong to suggest that whatever I have stated in my examinationinchief today is correct. It is wrong to suggest that during the lunch break today I have been forced by my father and brother to change my statement and that is why when my cross examination by the defence Counsel started after lunch, I took a somersault and even denied my examinationinchief recorded before the lunch."
(Underlined by me) PW7 - Prosecutrix during her crossexamination conducted by the Learned Counsel for accused Sunder, after her re examination by the Learned Addl. PP for the State has specifically deposed : "It is correct that my father and brother told me to state the truth and not to state anything at the instance of the Police."
PW7 - prosecutrix was not crossexamined by the Learned Counsel for accused Ajay @ Kalia, after her re examination by the Learned Addl. PP for the State.
On careful perusal and analysis of the testimony of PW7 - prosecutrix, it is found to be natural, clear, cogent, convincing, 73 of 130 74 FIR No. 177/11 PS - Narela trustworthy and inspiring confidence. In the witness box PW7 - prosecutrix has categorically deposed, during the course of her re examination conducted by Learned Addl. PP for the State recorded on 14/02/2013 (in the after lunch session) that, "During the lunch, I had talked to my father and my brother. It is correct that my father and brother had told me during lunch that I have to change my statement". The aforesaid part of testimony of PW7 - prosecutrix explains the reason that, on account of pressure exerted upon her by her father and brother she changed her statement in her crossexamination conducted on behalf of the accused recorded on 14/02/2013 in the after lunch session in order to support the accused. Moreover, despite the kinks/oscillations made by PW7 - prosecutrix during the course of crossexamination conducted by the Learned Counsel for the accused recorded on 14/02/2013 in the after lunch session, the version of this witness on the core spectrum of the crime has remained intact. There is nothing in her statement to suggest that she had any animus against the accused to falsely implicate them in the case.
It is also evident from the record that PW7 - prosecutrix was not crossexamined nor any suggestion was put to her, on the 74 of 130 75 FIR No. 177/11 PS - Narela facts elicited by Learned Addl. PP for the State during her re examination recorded on 14/02/2013 in the after lunch session wherein, PW7 has specifically deposed that "During the lunch, I had talked to my father and my brother. It is correct that my father and brother had told me during lunch that I have to change my statement."
It is settled law that if any witness has taken complete U Turn from what he had deposed in examinationinchief, then the chief examination part of the witness cannot be thrown out. (Ref. Brij Pal Singh (Shri) vs. CBI 2011 VII AD (DELHI) 371).
On analysing the entire testimony of PW7 - prosecutrix, it transpires that she has described the scenario implicating the accused to be the author of the crime committed upon her, of the committal of the sexual assault upon her by accused Sunder and of the abetting of the said offence by accused Ajay @ Kalia. Accused have failed to elicit any material or relevant discrepancies or inconsistencies despite her searching crossexamination.
75 of 130 76 FIR No. 177/11 PS - Narela The testimony of PW7 - Prosecutrix is also found to be corroborated by the medical/gynaecological evidence as well as the biological and serological evidence as discussed hereinbefore.
The testimony of PW7 - Prosecutrix is also found to be in consonance with her statement recorded u/s 164 Cr.P.C. Ex. PW5/C made in the Court.
The testimony of PW7 - Prosecutrix is also found to be corroborated by PW6 - Raj Singh, her father, to whom 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.
PW6 - Raj Singh in his examinationinchief has deposed that : "Prosecutrix (name withheld) is my daughter and now she is about 18 years of age. I do not know the date, month and year, however, it was about many months ago, my daughter/prosecutrix (name 76 of 130 77 FIR No. 177/11 PS - Narela withheld) missing from the house. A telephone call was received from prosecutrix (name withheld). I do not remember the number from which the telephone call was received. I am illiterate. I reported the matter to the Police. My daughter was found with two persons. I do not know the name of those persons. I do not remember from which place my daughter was found. Police has arrested the two boys with whom my daughter was found. Police has obtained my signatures on some papers. At present, my eye sight is very weak and I am a old man and I am not able to see my signatures on the documents prepared by the Police. My daughter told that those boys had taken her away with them and they committed rape upon her (gande kam). I can identify those boys, who were apprehended with my daughter. After seeing the accused persons present in the Court today, witness submits that these are not the persons who were apprehended with my daughter."
From the aforesaid narration of PW6 - Raj Singh, it is clear that the prosecutrix (name withheld) is his daughter and now she is about 18 years of age. He does not know the date, month and year, however, it was about many months ago, his daughter/prosecutrix (name withheld) missing from the house. A telephone call was received from prosecutrix (name withheld). He does not remember the number from which the telephone call was received. He is an illiterate. He reported the matter to the Police. His daughter was found with two persons. He does not know the name of those persons. He does not remember from 77 of 130 78 FIR No. 177/11 PS - Narela which place his daughter was found. Police has arrested the two boys with whom his daughter was found. Police has obtained his signatures on some papers. At present, his eye sight is very weak and he is an old man and he is not able to see his signatures on the documents prepared by the Police. his daughter told that those boys had taken her away with them and they committed rape upon her (gande kam). He did not identify the accused persons after seeing them in the Court and submits that these are not the persons who were apprehended with his daughter.
PW6 - Raj Singh was also crossexamined by the Learned Addl. PP for the State on the point of identity of accused. The cross examination as conducted by the Learned Addl. PP for the State reads as under : "It is wrong to suggest that today I am deposing falsely that accused Sunder and Ajay @ Kalia, present in the Court today are not the persons who were apprehended with my daughter. It is wrong to suggest that today I am not able to see the faces of the accused Sunder and Ajay clearly as my eye sight is very weak. It is wrong to suggest that accused Sunder and Ajay @ Kalia present in the Court today were those boys who were apprehended with my daughter.
On careful perusal and analysis and by applying the 78 of 130 79 FIR No. 177/11 PS - Narela discerning scrutiny standard [Ref. Raju @ Balachandran & Ors. Vs. State of Tamil Nadu 2012 XII AD (S.C.)1] the testimony of PW6 - Raj Singh, father of the prosecutrix is found to be natural, clear, reliable, inspiring confidence and having a ring of truth except for the fact that he did not identify both the accused and it by itself does not falsify the case of the prosecution which is otherwise proved on record by clear, cogent and convincing evidence.
23. 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 79 of 130 80 FIR No. 177/11 PS - Narela any seminal stains. In such a case the medical officer should mention the negative facts in his report, but should not give his opinion that no rape had been committed. Rape, is crime and not a medical condition. Rape is a legal term and not a diagnosis to be made by the medical officer treating the victim. The only statement that can be made by the medical officer is that there is evidence of recent sexual activity. Whether the rape has occurred or not is a legal conclusion, not a medical one."
In Parikh's Textbook of Medical jurisprudence and Toxicology, the following passage is found : "Sexual intercourse : In law, this term is held to mean the slightest degree of penetration of the vulva by the penis with or without emission of semen. It is therefore quite possible to commit legally the offence of rape without producing any injury to the genitals or leaving any seminal stains."
In Encyclopedia of Crime and Justice (Vol. 4) at page 1356, it is stated : ".....even slight penetration is sufficient and emission is unnecessary."
On analysing the testimony of PW7 - Prosecutrix in the light of medical examination vide MLC Ex. PW11/A, gynaecological examination from point 'A' to 'A1' on the MLC Ex. PW1/A evidence and 80 of 130 81 FIR No. 177/11 PS - Narela biological and serological evidence Ex. PW8/A and Ex. PW8/B together with the MLC of accused Sunder Ex. PW11/B, as discussed herein before, the act of sexual intercourse activity by complete penetration of penis with emission of semen or by partial penetration of the penis with emission of semen, within labia majora or the vulva or pudenda stands proved.
In the circumstances, it stands clearly established on the record, of the performance of the act of sexual intercourse by accused Sunder with PW7 - Prosecutrix without her consent.
24. Learned Counsel for the accused Sunder submitted that the complainant/father of the prosecutrix got registered an FIR against Sh. Mehar Chand S/o Sh. Jug Lal, R/o Village Dhoka, District - Bhiwani having mobile No. 08053950262 with the allegations that his daughter/prosecutrix (name withheld) aged 17 years who was not traceable since October, 2010 is in the custody of said Mehar Chand. On the said complaint an FIR u/s 363 IPC was registered. He further submitted that no action was taken against the said Mehar Chand and he was never called for any investigation by the IO and his name does not 81 of 130 82 FIR No. 177/11 PS - Narela even appear in the ChargeSheet in any column.
I have carefully perused and analysed the evidence on record.
PW10 SI Rajbir Singh IO, during his crossexamination conducted on behalf of accused Ajay, has specifically deposed that, "no inquiry was made from Mehar Chand S/o Jug Lal during the period 21/04/11 to 24/04/11. Vol. Inquiry was made from the prosecutrix. I never talked on the telephone no. 08053950262 mentioned in the Ex. PW2/A."
From the aforesaid narration of PW10 SI Rajbir Singh IO, it is clearly indicated that he did not make any inquiry from Mehar Chand nor talked on the telephone number mentioned in the DD No. 19, Ex. PW2/A. He has candidly deposed regarding the said facts and has not concealed the same. Non making of an inquiry from Mehar Chand and non making of telephone call to him on the telephone number mentioned in the DD No. 19, Ex. PW2/A by PW10 SI Rajbir Singh IO does not falsify the case of the prosecution which is otherwise proved on record by clear, cogent and convincing evidence.
82 of 130 83 FIR No. 177/11 PS - Narela The sight cannot be lost of the fact that PW6 - Raj Singh, father of the prosecutrix made the DD No. 19, Ex. PW2/A incorporating therein the facts regarding Mehar Chand and giving therein the telephone number. It is evident from the record that during the cross examination of PW6 - Raj Singh, none of the said accused voiced their concerns or raised any apprehension on the aspects regarding Mehar Chand and his telephone number mentioned in the DD No. 19 Ex. PW2/A lodged by him (PW6 - Raj Singh). He 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.
At the cost of repetition, recently in case 'Mahavir Singh Vs. State of Haryana', (2014) 6 SCC 716, the Hon'ble Supreme Court has observed that it is settled legal proposition that in case the question is not put to the witness in crossexamination who could furnish explanation on a particular issue, the correctness or legality of the said fact/issue could not be raised.
83 of 130 84 FIR No. 177/11 PS - Narela Moreover, the said lapse or discrepancy regarding which the plea has been raised by the Learned Counsel for the accused that PW10
- SI Rajbir Singh did not make any inquiry from Mehar Chand nor talked on the telephone number mentioned in the DD No. 19, Ex. PW2/A, may reflect on the investigation but does not reflect upon the substantive evidence and the probative value of the statement made by PW7 - prosecutrix on the material and relevant aspects. Nor does it vitiate or negate the case of the prosecution which is otherwise proved on record by clear, cogent and convincing evidence. The version of PW7 - prosecutrix on the core spectrum of crime has remained intact.
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 Sunder submitted that prosecutrix allegedly went missing in October, 2009 but astonishingly no complaint in this respect was lodged by her father, the complainant in any Police Station or to any other authority and kept mum for six months 84 of 130 85 FIR No. 177/11 PS - Narela and it was only got lodged by the complainant to falsely implicate the accused persons.
Learned Counsel for accused Ajay @ Kalia submitted that even the PW10 SI Rajbir Singh, who is the investigating officer, in his examinationinchief said that on 21/04/2011 complainant came at the police station and lodged a report regarding the kidnapping of her daughter (name withheld), aged around 17 years. Learned Counsel for accused Ajay @ Kalia further submitted that the story of the prosecution is also not reliable as the prosecutrix was stated to be missing from October, 2010 while DD entry was made on 21/04/2011 and PW10 - SI Rajbir Singh IO said in his crossexamination that he did not ask from complainant as to whether he had earlier lodged any complaint regarding missing of his daughter.
I have carefully perused and analysed the evidence on record.
Although the related plea raised by the Learned Counsel for the accused has been analysed and discussed hereinbefore, yet 85 of 130 86 FIR No. 177/11 PS - Narela in the interest of justice, I shall deal with the plea so raised by the Learned Counsel for the accused.
So far as the plea raised by the Learned Counsel for the accused that, prosecutrix allegedly went missing in October, 2009 but astonishingly no complaint in this respect was lodged by her father, the complainant in any Police Station or to any other authority and kept mum for six months and it was only got lodged by the complainant to falsely implicate the accused persons, is concerned, it is evident from the record that during the crossexamination of PW6 - Raj Singh, none of the said accused voiced their concerns or raised any apprehension on the aspects regarding Mehar Chand and his telephone number mentioned in the DD No. 19 Ex. PW2/A lodged by him (PW6 - Raj Singh). He 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.
At the cost of repetition, recently in case 'Mahavir Singh Vs. State of Haryana', (2014) 6 SCC 716, the Hon'ble Supreme Court has observed that it is settled legal proposition that in case the question 86 of 130 87 FIR No. 177/11 PS - Narela is not put to the witness in crossexamination who could furnish explanation on a particular issue, the correctness or legality of the said fact/issue could not be raised.
PW10 - SI Rajbir Singh IO, during his crossexamination on behalf of accused Sunder has specifically deposed that : "Q. Please see DD No. 19 dated 21.4.2011 Ex. PW2/A in which Raj Singh, had disclosed that her daughter/prosecutrix (name withheld) is missing from last year since October, 2010. Did you ask him whether he had lodged any complaint during the said period of last six months? A. I had not asked from Raj Singh, father of the prosecutrix (name withheld) as to whether he had earlier lodged any complaint regarding the missing of his daughter/prosecutrix."
There is nothing in the crossexamination of PW10 - SI Rajbir Singh IO so as to impeach his creditworthiness. He has deposed regarding the facts which he acted, perceived, observed and experienced.
The sight cannot be lost of the fact that there are several factors which weigh in the mind of the family members of the prosecutrix before coming to the Police Station to lodge a complaint.
87 of 130 88 FIR No. 177/11 PS - Narela Delay in lodging of FIR is a normal phenomenon especially 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 88 of 130 89 FIR No. 177/11 PS - Narela prosecutrix happens to be a married person she will not do anything without informing her husband. Merely because the complaint was lodged less then promptly does not raise the inference that the complaint was false. The reluctance to go to the police is because of society's attitude towards such women; it casts doubt and shame upon her rather than comfort and sympathise with her. Therefore, delay in lodging complaints in such cases does not necessarily indicate that her version is false (emphasis added)."
The Hon'ble Supreme Court in Para 21 in case Rajinder V. State of H.P. AIR 2009 SC 3022 has interalia held : "21. In the context of Indian Culture, a woman victim of sexual aggression would rather suffer silently than to falsely implicate somebody. Any statement of rape is an extremely humiliating experience for a woman and until she is a victim of sex crime, she would not blame anyone but the real culprit. While appreciating the evidence of the prosecutrix, the Courts must always keep in mind that no self respecting 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 89 of 130 90 FIR No. 177/11 PS - Narela corroboration from any other evidence including the evidence of a doctor. In a given case even if the doctor who examined the victim does not find sign of rape, it is no ground to disbelieve the sole testimony of the prosecutrix. In normal course a victim of sexual assault does not like to disclose such offence even before her family members much less before public or before the police. The Indian women has tendency to conceal such offence because it involves her prestige as well as prestige of her family. Only in few cases, the victim girl or the family members has courage to go before the police station and lodge a case......"
The Hon'ble Supreme Court in Para 20 in case Satyapal V. State of Haryana AIR 2009 SC 2190 has interalia held : "20. This Court can take judicial notice of the fact that ordinarily the family of the victim would not intend to get a stigma attached to the victim. Delay in lodging the First Information Report in a case of this nature is a normal phenomenon......."
In the 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 90 of 130 91 FIR No. 177/11 PS - Narela 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.
26. Learned Counsel for the accused Sunder submitted that as per the recovery memo of the prosecutrix, she was recovered from the custody of accused Sunder and Ajay @ Kalia from Narela Railway Station, on the pointing out of father of the prosecutrix. However, no railway ticket or any other single document to show that they came from train has been placed on the record and similarly no public witness in this regard was either cited or examined by the prosecution. He further submitted that this fact is also corroborated by the father of the prosecutrix in his crossexamination that both the accused persons are not the same persons from whose possession, his daughter was recovered. He further submitted that prosecutrix in her cross examination has stated that she was recovered from Dadri, Haryana by her father.
91 of 130 92 FIR No. 177/11 PS - Narela Learned Counsel for accused Ajay @ Kalia submitted that PW6 Raj Singh is the complainant and father of the prosecutrix and in his examinationinchief he said "My daughter was found with two persons. I do not know the name of those persons. I do not remember from which place my daughter was found." He further said 'Police has obtained my signatures on some papers". PW6 specifically stated that the accused Ajay @ Kalia and coaccused present in the court are not the persons who were apprehended with his daughter." Even the PW6 was crossexamined by the Learned Addl. PP for State, but nothing incriminating could be derived from the said crossexamination. Even PW6 specifically denied the suggestion that the accused Ajay @ Kalia and coaccused were those boys who were apprehended with his daughter. Learned Counsel for accused Ajay @ Kalia further submitted that it is apparent that there has been no public or independent witness examined or produced by the prosecution while it has emerged out from the testimonies of the various prosecution witnesses that there were many persons available as it is claimed that the accused Ajay @ Kalia was arrested from Narela Railway Station which was full of crowd.
92 of 130 93 FIR No. 177/11 PS - Narela I have carefully perused and analysed the evidence on record.
The testimony of PW7 - prosecutrix has been reproduced, detailed and analysed hereinbefore. At the cost of repetition, her testimony is found to be natural, clear, cogent, convincing and inspiring confidence.
The testimony of PW10 - SI Rajbir Singh, IO has been detailed and discussed hereinbefore. On careful and analysis, it is found to be clear, cogent and a graphic details of the facts which he took during the course of investigation. There is nothing in his statement to suggest that he had any animus against the accused to falsely implicate them in the case.
So far as the plea raised by the Learned Counsel for the accused that as per the recovery memo Ex. PW4/A, she was recovered form the custody of accused Sunder and Ajay @ Kalia from the Narela, Railway Station on the pointing out of PW6 - Raj Singh, father of the prosecutrix and that no railway ticket or any other similar document to show that they have come from train and that PW6 in his cross 93 of 130 94 FIR No. 177/11 PS - Narela examination has deposed that both the accused persons are not the same persons from whose possession, his daughter was recovered and that PW7 - prosecutrix, during her crossexamination has stated that she was recovered from Dadri, Haryana, by her father, is concerned, it is evident from the record that during the crossexamination of PW10 - Rajbir Singh, IO none of the said accused voiced their concerns or raised any apprehension on the aspects regarding which the plea has been raised. He 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.
At the cost of repetition, recently in case 'Mahavir Singh Vs. State of Haryana', (2014) 6 SCC 716, the Hon'ble Supreme Court has observed that it is settled legal proposition that in case the question is not put to the witness in crossexamination who could furnish explanation on a particular issue, the correctness or legality of the said fact/issue could not be raised.
Nonjoining of the public witness does not falsify the case 94 of 130 95 FIR No. 177/11 PS - Narela of the prosecution which is otherwise proved on record by clear, cogent and convincing evidence.
It is a matter of common experience that public persons are reluctant to assist the Police in the investigation.
In case Nirmal Singh & Ors. Vs. State 2011 III AD (DELHI) 699, the Hon'ble Delhi High Court has held that : "It is a known fact that the persons of the public are reluctant to join the Police in the investigation of any case as they do not want to undertake unpleasant task of attending the Police Station and the Court for giving evidence."
The mere fact of nonjoining a public witness, will not ipso facto make the evidence of the Police witnesses suspect, unreliable or untrustworthy (Ref. 'Abdul Mura Salim Vs. State' 2005 (8) JCC 1776).
In the circumstances, there is no substance in the plea so raised by the Learned Counsel for the accused.
95 of 130 96 FIR No. 177/11 PS - Narela
27. Learned Counsel for the accused Sunder submitted that during the medical examination of prosecutrix about her injury in the forearm, the opinion of the Doctor is that the same is caused by broken bangles and abrasion on both legs were caused by nails of assailants. The sample of nails of both the hands of both the accused persons were taken but nothing incriminating was recovered against accused persons as per the FSL Reports Ex. PW8/A and Ex. PW8/B. Learned Counsel for accused Ajay @ Kalia submitted that other prosecution witnesses also did not support the story and charges of the prosecution. Even PW1 Dr. Anima in her crossexamination admitted that the injuries mentioned on general examination can be caused on the person of married women because of wearing bangles and can be self inflicted. She further said the she cannot say that the injuries on the legs are self inflicted as they can be self inflicted as these are accessible site of the body. However PW1 in her further cross examination said "I do not recollect as to whether the exhibits were sealed with the Hospital seal but must have been sealed with the Hospital seal". She further said "I do not remember the impression of 96 of 130 97 FIR No. 177/11 PS - Narela the seal or as to how many seals impressions were put on each of the exhibits."
I have carefully perused and analysed the evidence on record.
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.
The testimony of PW1 - Dr. Anima Dayal, Senior Resident, Satyawati Raja Harish Chand Hospital, Narela, Delhi has been discussed and analysed hereinbefore.
During her crossexamination on behalf of accused Ajay @ Kalia, PW1 - Dr. Anima Dayal has specifically deposed that, "it is correct that the injuries mentioned on general examination, as above, can be caused on the person of married women because of wearing bangles and can be self inflicted. I cannot say that, the injuries in the legs are self inflicted as they can be self inflicted as 97 of 130 98 FIR No. 177/11 PS - Narela these are accessible site of the body".
From the aforesaid narration of PW1 - Dr. Anima Dayal, it is clearly indicated that she has deposed what is being reproduced here inabove and not in the manner as the plea raised by the Learned Counsel for the accused Sunder.
Further it is not made clear by the Learned Counsel for the accused Ajay @ Kalia as to what he intends to convey and as to what benefit he intends to reap from the aforesaid part of crossexamination of PW1 - Dr. Anima Dayal, as reproduced hereinabove.
Even without producing any injury to the genitals it is quite possible to commit legally the offence of rape.
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 98 of 130 99 FIR No. 177/11 PS - Narela 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 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.
So far as the plea raised by the Learned Counsel for accused Ajay @ Kalia that, PW1 - Dr. Anima Dayal in her crossexamination conducted on behalf of accused Sunder has deposed that, "I do not recollect as to whether the exhibits were sealed with the Hospital seal but must have been sealed with the Hospital seal". She further said "I do not remember the impression of the seal or as to how many seals impressions were put on each of the exhibits.", is concerned, it is not made clear by the Learned Counsel for the accused as to what benefit he intends to reap from the plea so raised. Nonrecollection of seal impression with which the exhibits were sealed by PW1 - Dr. Anima 99 of 130 100 FIR No. 177/11 PS - Narela Dayal does not falsify the case of the prosecution which is otherwise proved on record by clear, cogent and convincing evidence.
As regards the plea raised by the Learned Counsel for accused Sunder that the samples of nails of both the accused were taken and nothing incriminating was recovered against accused persons as per the FSL Reports Ex. PW8/A and Ex. PW8/B, is concerned, 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. No nail samples of both the accused has ever been taken in the instant case. The Biological and Serological evidence has been reproduced, discussed and analysed hereinbefore.
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 Sunder submitted that PW10 - SI Raj Singh during his crossexamination has deposed that, "After the investigation was handed over to me and when I visited the 100 of 130 101 FIR No. 177/11 PS - Narela house of Raj Singh at about 4:00 p.m. on 21/04/2011, I met Raj Singh only and none else. I had inquired from Raj Singh about the other family members and he had told that he is having two unmarried sons. I remained till 7:00/8:00 p.m. at the house of Raj Singh on that day. No statement of any person was recorded there nor of any neighbours as none of the neighbours joined the investigation proceedings. No document regarding the identification of the prosecutrix nor any photograph of the prosecutrix was taken into police possession during the period of my stay at the house of Raj Singh."
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 benefit he intends to reap by raising the said plea.
On careful perusal and analysis of the testimony of PW10 - SI Rajbir Singh, it is found to be clear, cogent and a graphic details of the facts which he took during the course of investigation. There is nothing in his statement to suggest that he had any animus against the 101 of 130 102 FIR No. 177/11 PS - Narela accused to falsely implicate them in the case.
Nonrecording of the statement of any person or non joining of the investigation by the neighbours and nonobtaining of any photograph of the prosecutrix by the IO SI Rajbir Singh, 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, nonjoining of the public witness does not falsify the case of the prosecution which is otherwise proved on record by clear, cogent and convincing evidence.
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 102 of 130 103 FIR No. 177/11 PS - Narela the victims often results in criminal justice going awry. 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.
29. Learned Counsel for the accused Sunder submitted that during his crossexamination PW10 - SI Rajbir Singh IO has deposed that, "during the course of investigation, the village of accused in Bhiwani was also visited on 23/04/2011 and they returned from Bhiwani at about 11:00/12:00 noon but there is no whisper in respect of the said visit in the entire ChargeSheet, no statement of any person is placed on 103 of 130 104 FIR No. 177/11 PS - Narela record by the IO".
I have carefully perused and analysed the evidence on record.
PW10 - SI Rajbir Singh IO, during his crossexamination on behalf of accused Sunder recorded on 12/04/2013 has specifically deposed that : "During the course of investigation the village of accused in Bhiwani was also visited on 23/04/2011. At the time when Bhiwani was visited, at the information given the house of the accused was also visited but there it was revealed that they had already left their houses. Firstly, house of Ajay was visited. The house of accused Sunder was at a distance of about 22½ km from the house of Ajay. No family member of accused Ajay was found present at his house. I do not recollect as to whether any query was made nearby the house of accused Ajay. We returned from Bhiwani at about 11:00/12:00 noon on 24/04/2011."
So far as the plea raised by the Learned Counsel for the accused that, during the course of investigation, the village of accused in Bhiwani was also visited on 23/04/2011 and they returned from Bhiwani at about 11:00/12:00 noon but there is no whisper in respect of the said visit in the entire ChargeSheet, no statement of any person is placed on 104 of 130 105 FIR No. 177/11 PS - Narela record by the IO, is concerned, it is evident from the record that during the crossexamination of PW10 - SI Rajbir Singh IO, none of the said accused voiced their concerns or raised any apprehension on the aspects regarding which the plea has been raised. He 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.
At the cost of repetition, recently in case 'Mahavir Singh Vs. State of Haryana', (2014) 6 SCC 716, the Hon'ble Supreme Court has observed that it is settled legal proposition that in case the question is not put to the witness in crossexamination who could furnish explanation on a particular issue, the correctness or legality of the said fact/issue could not be raised.
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).
105 of 130 106 FIR No. 177/11 PS - Narela In the circumstances, there is no substance in the plea so raised by the Learned Counsel for the accused.
30. Learned Counsel for accused Ajay @ Kalia submitted that prosecution also examined PW3 Smt. Birmla, PRT, MCD School, who brought admission register proof of admission of one girl (name withheld) d/o Sh. Rajpal and it was alleged that the age (date of birth) of said girl (name withheld) was 17/11/1994 as per school record. Learned Counsel submitted that the said admission register and record of date of birth as produced by the prosecution through PW3 does not pertain to the prosecutrix as according to the own case of the prosecution the name of the prosecutrix is (name withheld) and her father's name is Raj Singh (PW5), while the said admission register pertains to some other girl namely prosecutrix (name withheld) d/o Sh. Rajpal. Thus the prosecution has miserably failed to prove the age of the prosecutrix through evidence. Moreover, the said witness PW3 stated in her cross examination that she has no personal knowledge regarding admission of prosecutrix (name withheld). Learned Counsel further submitted that 106 of 130 107 FIR No. 177/11 PS - Narela merely producing the government school record does not have the evidentiary value regarding the age of prosecutrix.
I have carefully perused and analysed the evidence on record.
PW10 - SI Rajbir Singh IO during his examinationinchief has specifically deposed that : "I also collected the age proof of the prosecutrix which was seized by me vide memo Ex. PW10/A, bearing my signature at point 'A'."
At the cost of repetition, PW3 - Smt. Birmla, PRT, MCD School in her examinationinchief has deposed that she has brought admission register of prosecutrix (name withheld) D/o Rajpal. As per record, prosecutrix (name withheld) was admitted in aforementioned School on 06/07/2000 and she has passed 5th class from School at the time of her admission in School (her date of birth) was 17/11/1994. She has also brought the admission form submitted up by mother of prosecutrix (name withheld) namely Smt. Santosh. At the time of admission, Smt. Santosh had submitted a document in the form of an 107 of 130 108 FIR No. 177/11 PS - Narela affidavit in proof of her age. She has brought original Admission Register, Admission Form and Affidavit and copy of the same are Ex. PW3/A and PW3/B and Ex. PW3/C respectively (OSR). She has also seen the copy of School Leaving Certificate of prosecutrix (name withheld) and the same has been issued from their School and the same is Ex. PW3/D which bears the signature of the then Principal at point 'A' who has retired now.
During her crossexamination on behalf of accused Ajay @ Kalia as well as accused Sunder, PW3 - Smt. Birmla has deposed that : "It is correct that I do not have any personal knowledge regarding admission of prosecutrix (name withheld)."
There is nothing in the crossexamination of PW3 - Smt. Birmla so as to impeach her creditworthiness. Nor any evidence to the contrary has been produced or proved on the record on behalf of the accused.
I have carefully perused the copies of original admission register, admission form, affidavit and School Leaving Certificate of the 108 of 130 109 FIR No. 177/11 PS - Narela prosecutrix Ex. PW3/A, Ex. PW3/B, Ex. PW3/C and Ex. PW3/D respectively. In all the said documents Ex. PW3/A to Ex. PW3/D, no doubt the name of father of the prosecutrix has been shown as 'Raj Pal' but sight cannot be lost of the fact nor has been disputed by the accused that in all the said documents Ex. PW3/A to Ex. PW3/D, name of mother of the prosecutrix has been shown as "Smt. Santosh" and the address of the prosecutrix has been shown as "House No. 1305, Pana Paposian Devi Wali Gali, Narela, Delhi". Moreover, the copy of admission register Ex. PW3/A at entry no. 2128, dated 06/07/2000 also shows the photo of prosecutrix affixed. Nor the said photo of prosecutrix has been disputed by the accused.
So far as the plea raised by the Learned Counsel for accused Ajay @ Kalia that the documents Ex. PW3/A, Ex. PW3/B, Ex. PW3/C and Ex. PW3/D do not belong to prosecutrix is concerned, it is evident from the record that neither during the crossexamination of PW6 - Sh. Raj Singh, father of the prosecutrix nor during the crossexamination of PW10 - SI Rajbir Singh IO nor during the crossexamination of PW7 - prosecutrix, the said accused voiced his concern or raised any 109 of 130 110 FIR No. 177/11 PS - Narela apprehension on the aspect regarding which the plea has been raised. They were the only competent witnesses who would have been fully capable of explaining correctly the factual situation. For such failure, accused is to blame himself and none else.
At the cost of repetition, recently in case 'Mahavir Singh Vs. State of Haryana', (2014) 6 SCC 716, the Hon'ble Supreme Court has observed that it is settled legal proposition that in case the question is not put to the witness in crossexamination who could furnish explanation on a particular issue, the correctness or legality of the said fact/issue could not be raised.
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).
Dealing with the effect of non crossexamination, the Hon'ble Supreme Court in 'Laxmibai (dead) Thr. LRs and Anr. V. 110 of 130 111 FIR No. 177/11 PS - Narela Bhagwantbuva (dead) Thr. LRs and Ors.' AIR 2013 SC 1204, observed as under : "40. Furthermore, there cannot be any dispute with respect to the settled legal proposition, that if a party wishes to raise any doubt as regard the correctness of the statement of a witness, the said witness must be given an opportunity to explain his statement by drawing his attention to that part of it, which has been objected to by the other party, as being untrue. Without this, it is not possible to impeach his credibility. Such a law has been advanced in view of the statutory provisions enshrined in Section 138 of the Evidence Act, 1872, which enable the opposite party to crossexamine a witness as regard information tendered in evidence by him during his initial examination inchief and the scope of this provision stands enlarged by Section 146 of the Evidence Act, which permits a witness to be questioned, interalia, in order to test his veracity. Thereafter, the unchallenged part of his evidence is to be relied upon, for the reason that it is impossible for the witness to explain or elaborate upon any doubts as regards the same, in the absence of questions put to him with respect to the circumstances which indicate that the version of events provided by him, is not fit to be believed, and the witness himself, is unworthy of credit. Thus, if a party intends to impeach a witness, he must provide adequate opportunity to the witness in the witness box, to give a full and proper explanation. The same is essential to ensure fair play and fairness in dealing with witnesses. (See : Khem Chand V. State of Himachal Pradesh, AIR 1994 SC 226; State of U.P. V. Nahar Singh (dead) and Ors., AIR 1998 SC 1328; Rajinder Pershad (Dead) by L.Rs V. Darshana Devi (Smt.), AIR 2001 SC 3207; and Sunil Kumar and Anr. V. State of Rajasthan, 111 of 130 112 FIR No. 177/11 PS - Narela AIR 2005 SC 1096)."
In the circumstances, there is no substance in the plea so raised by the Learned Counsel for the accused.
31. Learned Counsel for accused Ajay @ Kalia submitted that PW4 Constable Gopi Chand, in his crossexamination has deposed that they left the Police Station for Railway Station at about 2:00 p.m. in the afternoon and it took about 3540 minutes to reach at Railway Station. On the other hand, as per the MLC of the prosecutrix (name withheld) at Satyavadi Raja Harish Chandra Hospital, Narela, Delhi, the prosecutrix was brought at the Hospital on 24/04/2011 at 1:30 p.m. which proves that the testimony of PW4 was not trustworthy to support and prove the sequence and events as made for the arrest of the applicant/accused. Learned Counsel further submitted that even the accused Ajay @ Kalia was medically examined as per MLC Sheet on dated 24/04/2011 at 1:00 p.m. at the same Hospital. Learned Counsel further submitted that similarly PW10 SI Rajbir Singh said in his crossexamination that "About 2:00 p.m. with Raj Singh, father of prosecutrix we reached at the Narela Railway Station." He further said 112 of 130 113 FIR No. 177/11 PS - Narela "After about half to one hour of our reaching to Narela Railway Station, the prosecutrix was identified by her father." But on the other hand the said MLCs and hospital records speaks otherwise, when the accused persons as well as prosecutrix were medically examined between 1.00 pm and 1.30 pm. I have carefully perused and analysed the evidence on record.
So far as the plea raised by the Learned Counsel for the accused Ajay @ Kalia that, "there is a variation/discrepancy on the point of time of reaching at Narela Railway Station and of the time at which the medical examination of the prosecutrix and of the accused Sunder and Ajay @ Kalia were got conducted at SRHC Hospital", is concerned, it is evident from the record that during the crossexamination of PW10 SI Rajbir, IO none of the said accused voiced their concerns or raised any apprehension on the aspect regarding which the plea raised. He was the only competent witness who would have been fully capable of explaining correctly the factual situation.
113 of 130 114 FIR No. 177/11 PS - Narela At the cost of repetition, recently in case 'Mahavir Singh Vs. State of Haryana', (2014) 6 SCC 716, the Hon'ble Supreme Court has observed that it is settled legal proposition that in case the question is not put to the witness in crossexamination who could furnish explanation on a particular issue, the correctness or legality of the said fact/issue could not be raised.
Moreover, the said discrepancy may reflect upon the investigation but does not reflect upon the substantive and probative value of the statement of the PW7 - prosecutrix made on material and relevant aspects. Nor does it vitiate or negate the case of the prosecution which is otherwise proved on record by clear, cogent and convincing evidence. Nor does it dislodge the substratum of the prosecution case and despite its existence the clear, cogent, convincing, reliable and trustworthy evidence proved on record bears out the case of the prosecution.
In the circumstances, there is no substance in the plea so raised by the Learned Counsel for the accused.
114 of 130 115 FIR No. 177/11 PS - Narela
32. Learned Counsel for accused Ajay @ Kalia submitted that PW10 - SI Rajbir Singh in his crossexamination stated "It is wrong to suggest that it has come into my knowledge during the course of investigation that the prosecutrix had married with accused Ajay and was living with him of her own." The said version of investigating officer is completely wrong and false as it is very much mentioned in the MLC of Raja Harish Chandra Hospital, Narela, Delhi when the prosecutrix told the Doctor that she is married. Thus the investigating officer was well within the knowledge of the fact that the prosecutrix was married with the accused Ajay @ Kalia but the IO deliberately made wrong and false statement before the Court.
I have carefully perused and analysed the evidence on record.
As far as the plea raised by the Learned Counsel for the accused that, "PW10 - SI Rajbir Singh in his crossexamination stated "It is wrong to suggest that it has come into my knowledge during the course of investigation that the prosecutrix had married with accused 115 of 130 116 FIR No. 177/11 PS - Narela Ajay and was living with him of her own." The said version of investigating officer is completely wrong and false as it is very much mentioned in the MLC of Raja Harish Chandra Hospital, Narela, Delhi when the prosecutrix told the doctor that she is married", is concerned, with due respect, it appears that the Learned Counsel for the accused has either misread or not read the evidence on the record. On the aspect regarding which the plea has been raised by the Learned Counsel for the accused that prosecutrix told the Doctor that she is married, and from the same it had come into his (PW10 - SI Rajbir Singh IO) knowledge during the course of investigation that prosecutrix has married with accused Ajay and was living with him of her own, is concerned, on careful perusal and analysis of the MLC Ex. PW1/A of PW7 - prosecutrix, it is found to be totally silent on this aspect. Nor it is mentioned either in consent form, medical history form, form3 etc. in respect of patient/prosecutrix (name withheld), which are the part of the sexual assault forensic kit and are filled up in the handwriting of Dr. Anima Dayal and bearing her signatures at Points 'A' and are Ex. PW13/A (colly)., that the prosecutrix had 116 of 130 117 FIR No. 177/11 PS - Narela married with accused Ajay and was living with him of her own except to the fact that in the Medical History Form Ex. PW3/A what is mentioned in the column : Married/Single/Divorced "VICTIM SAYING THAT SHE IS MARRIED" to whom she is married, with whom she is living are totally absent even in the said information given by PW7 - prosecutrix.
In the circumstances, there is no substance in the plea so raised by the Learned Counsel for the accused.
33. Learned Counsel for accused Ajay @ Kalia submitted that none of the prosecution witnesses have at all supported the story and allegations made against the accused Ajay @ Kalia. Rather PW7 - prosecutrix stated in her examinationinchief that she was 18 years of age when she voluntarily married with the accused Ajay @ Kalia with her own free will. PW7 - prosecutrix was crossexamined and she in clear words stated "it is correct that I had come to Delhi with my father. It is correct that thereafter I had gone to my house at Narela. I remained at my home for about ten days. Police met me at my house only." She 117 of 130 118 FIR No. 177/11 PS - Narela further said "I used to do the house hold work at the house of Ajay while staying there. Accused Ajay had not used any force (Jabardasti) with me. It is correct that Ajay maintained the relations with me as are between husband an wife (Ajay ne wahi sambandh rakhe jo pati patni me hote hai)." Learned Counsel further submitted that the PW7 prosecutrix further stated in her crossexamination that she earlier made statement under the pressure of Police. Learned Counsel further submitted that PW7 - prosecutrix was further crossexamined by the Learned Addl. PP and she denied all the charges and allegations made against accused Ajay @ Kalia and gave a clean chit to the accused Ajay @ Kalia. No incriminating evidence was brought out by the Learned Addl. PP from the said crossexamination of prosecutrix.
I have carefully perused and analysed the evidence on record.
It is a settled principle that statements of the witnesses have to be read as a whole and not in a manner to pick up a sentence in isolation from the entire statement and ignoring its proper reference.
118 of 130 119 FIR No. 177/11 PS - Narela The testimony of PW7 - prosecutrix has been reproduced, discussed and analysed hereinbefore. The version of the prosecutrix on the core spectrum of the crime has remained intact.
On analysing the entire testimony of PW7 - prosecutrix, it transpires that she has described the scenario implicating the accused to be the author of the crime committed upon her, of the committal of the sexual assault upon her by accused Sunder and of the abetting of the said offence by accused Ajay @ Kalia. Accused have failed to elicit any material or relevant discrepancies or inconsistencies despite her searching crossexamination. The version of this witness on the core spectrum of crime has remained intact. There is nothing in her statement to suggest that she had any animus against the accused to falsely implicate them in the case.
PW7 - prosecutrix during her crossexamination on behalf of accused Ajay @ Kalia recorded on 14/02/2013 (after lunch) has negated the suggestion that she has made false allegation against accused 119 of 130 120 FIR No. 177/11 PS - Narela Ajay at the instance of her father.
It is pertinent to reproduce the relevant part of cross examination of PW7 - prosecutrix conducted on behalf of accused Ajay @ Kalia recorded on 14/02/2013 (after lunch) which reads as under : "It is wrong to suggest that I have made false allegations against accused Ajay at the instance of my father."
It is also to be noticed that PW7 - prosecutrix during her crossexamination on behalf of accused Sunder recorded on 14/02/2013 (after lunch) has deposed that : "It is correct that the statement which I made earlier today was under the pressure of Police. It is correct hat I had never been to the house of Sunder. It is correct that the statement which I had made before the Court u/s 164 Cr.P.C. was made under the pressure of Police."
PW7 - prosecutrix during the course of her further cross examination recorded on 12/04/2013 on behalf of accused Sunder, after her reexamination by the Learned Addl. PP for the State, has deposed that : 120 of 130 121 FIR No. 177/11 PS - Narela "It is correct that my father and brother told me to state the truth and not to state anything at the instance of the Police."
On a conjoint reading of the aforesaid narration of PW7 - prosecutrix, it is clearly indicated that as per the advise of her father and brother to state the truth and not to state anything at the instance of the Police thereby she had deposed the truth during the course of her examinationinchief, in the circumstances, the deposition made by PW7
- prosecutrix during her crossexamination recorded on 14/02/2013 (after lunch), on behalf of accused Sunder, to the effect that, "It is correct that the statement which I made earlier today was under the pressure of Police. It is correct that I had never been to the house of Sunder. It is correct that the statement which I had made before the Court u/s 164 Cr.P.C. was made under the pressure of Police", does not hold water and her examinationinchief recorded on 14/02/2013 in the prelunch session becomes her dependable part of her testimony.
At the cost of repetition, in the witness box PW7 - prosecutrix has categorically deposed, during the course of her re examination conducted by Learned Addl. PP for the State recorded on 121 of 130 122 FIR No. 177/11 PS - Narela 14/02/2013 (in the after lunch session) that, "During the lunch, I had talked to my father and my brother. It is correct that my father and brother had told me during lunch that I have to change my statement". The aforesaid part of testimony of PW7 - prosecutrix explains the reason that, on account of pressure exerted upon her by her father and brother she changed her statement in her crossexamination conducted on behalf of the accused recorded on 14/02/2013 in the after lunch session in order to support the accused.
It is also evident from the record that PW7 - prosecutrix was not crossexamined nor any suggestion was put to her, on the facts elicited by Learned Addl. PP for the State during her re examination recorded on 14/02/2013 in the after lunch session wherein, PW7 has specifically deposed that "During the lunch, I had talked to my father and my brother. It is correct that my father and brother had told me during lunch that I have to change my statement."
122 of 130 123 FIR No. 177/11 PS - Narela At the cost of repetition, it is settled law that if any witness has taken complete UTurn from what he had deposed in examinationin chief, then the chiefexamination part of the witness cannot be thrown out. (Ref. Brij Pal Singh (Shri) vs. CBI 2011 VII AD (DELHI) 371).
At the cost of repetition, dealing with the effect of deposition in opposition by the witness in the crossexamination, the Hon'ble Supreme Court in cases Radha Mohan Singh @ Lal Saheb & Ors Vs. State of U.P. AND Kaushal Kishore Singh & Anr. Vs. State of U.P. (2006) 2 SCC 450, observed as under : ".....The testimony of PW1 - Ganesh Singh, who is an injured witness and PW4 Ramji Singh clearly establish the guilt of the accused. According to the case of the prosecution the incident took place shortly after sunset. The eyewitnesses have deposed that after the incident the deceased Hira Singh was carried on a cot to the "bandh", which is on the outskirts of the village. As no conveyance was available, the first informant had to wait for quite some time and thereafter a tempo was arranged on which the deceased was taken to the District Hospital where he medically examined by PW2 - Dr. Siddiqui at 9:00 p.m. It has come in the evidence that the village is at a distance of six miles from Police Station Kotwali, Ballia. The nonavailability of any conveyance is quite natural as it was Holi festival. Even PW3 - Mohan Yadav fully supported the prosecution case in his examinationinchief.
123 of 130 124 FIR No. 177/11 PS - Narela In his crossexamination, which was recorded on the same date, he gave details of the weapons being carried by each of the accused and also the specific role played by them in assaulting the deceased and other injured persons. As his crossexamination could not be completed it was resumed on the next day and then he gave a statement that he could not see the incident on account of darkness. His testimony has been carefully examined by the Learned Sessions Judge and also by two Learned Judges of the High Court (Hon'ble K. K. Mishra), J. and Hon'ble U. S. Tripathi, J.) and they have held that the witness, on account of pressure exerted upon him by the accused, tried to support them in his crossexamination on the next day. It has been further held that the statement of the witness, as recorded on the first day including his crossexamination, was truthful and reliable. It is well settled 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 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 on a careful scrutiny thereof. (See 'Bhagwan Singh V. State of Haryana' AIR 1976 SC 202, 'Rabindra Kumar Dey V. State of Orissa' AIR 1977 SC 170, 'Syad Akbar V. State of Karnataka' AIR 1979 SC 1848 and 'Khujji V. State of M.P' AIR 1991 SC 1853)."
(Underlined by me) In the circumstances, there is no substance in the plea so raised by the Learned Counsel for the accused.
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34. Learned Counsel for accused Ajay @ Kalia submitted that the false complaint was made by the father of the prosecutrix wrongly and falsely, when no offence whatsoever was committed by the accused Ajay @ Kalia as he neither abducted nor committed rape with the prosecutrix. Rather the prosecutrix and accused Ajay @ Kalia solemnized the marriage of their sweet will and are thus legally wedded husband and wife and in her examinationinchief, the prosecutrix has already reiterated these facts and as such the prosecution has failed to prove its case beyond all reasonable doubts and since the accused Ajay @ Kalia and prosecutrix are legally wedded husband and wife and are living together happily.
I have carefully perused and analysed the evidence on record.
As far as the plea raised by the Learned Counsel for the accused that, "the false complaint was made by the father of the prosecutrix wrongly and falsely, when no offence whatsoever was committed by the accused Ajay @ Kalia as he neither abducted nor 125 of 130 126 FIR No. 177/11 PS - Narela committed rape with the prosecutrix", is concerned, it is evident from the record that during the crossexamination of PW10 - SI Rajbir Singh IO, the said accused Ajay @ Kalia did not voice his concern or raised any apprehension on the aspect regarding which the plea has been raised. He was the only competent witness who would have been fully capable of explaining correctly the factual situation. For such failure, accused is to blame himself and none else.
At the cost of repetition, recently in case 'Mahavir Singh Vs. State of Haryana', (2014) 6 SCC 716, the Hon'ble Supreme Court has observed that it is settled legal proposition that in case the question is not put to the witness in crossexamination who could furnish explanation on a particular issue, the correctness or legality of the said fact/issue could not be raised.
In the circumstances, there is no substance in the plea so raised by the Learned Counsel for the accused.
35. Learned Counsel for accused Ajay @ Kalia referred to the 126 of 130 127 FIR No. 177/11 PS - Narela cases and are reported as Alamelu & Anr. Vs. State, AIR 2011 SC 715; State of UP Vs. Jai Parkash, VII (2007) SLT 220; Pardeep @ Sonu Vs. State of Delhi, 2011 II AD (Crl.) (DHC) 503 and Rajesh Patel Vs. State of Jharkhand, 2013 (2) JCC 1260.
I have carefully gone through the same. With due respect 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".
36. In view of above and in the circumstances, prosecution has thus categorically proved beyond shadows of all reasonable doubts that after about 5/6 months of October, 2010, accused Ajay @ Kalia handed 127 of 130 128 FIR No. 177/11 PS - Narela over PW7 - prosecutrix, aged around 16 years (to be exact 15 years 10 months and 14 days) to accused Sunder, to whom she did not know earlier and accused Sunder took her to his house at village Harodi, PS - Badra, District - Bhiwani, Haryana and that from the house of accused Sunder, PW7 - prosecutrix fled and went to the house of accused Ajay @ Kalia and that accused Ajay @ Kalia abetted, accused Sunder for the commission of offence of rape upon her by intentionally aiding accused Sunder by allowing him (accused Sunder) to take her from his (accused Ajay @ Kalia) house and that accused Sunder took her from the house of accused Ajay @ Kalia by giving beatings to her and brought her to his house at village - Harodi, PS - Badra, District - Bhiwani, Haryana and kept her confined in the room and gave beatings to her in drunken state and also forcibly committed galat kaam with her without her consent and repeatedly established physical relations with her forcibly without her consent.
However, prosecution has failed to prove its case against accused Ajay @ Kalia to the extent that in the month of October, 2010, he kidnapped PW7 - prosecutrix from her lawful guardianship and took her to his house situated at Village - Dokka, PS - Badra, District -
128 of 130 129 FIR No. 177/11 PS - Narela Bhiwani, Haryana with intent that she may be or likely to be sexually assaulted and that he repeatedly committed rape upon the prosecutrix without her free will or consent.
I accordingly hold accused Sunder guilty for the offence punishable u/s 376 IPC. Accused Ajay @ Kalia is hold guilty for the offence punishable u/s 376 IPC r/w Section 109 IPC and convict them thereunder. However, accused Ajay @ Kalia is acquitted for the offences punishable u/s 363/366/376 IPC.
37. In view of above discussion, I am of the considered opinion that as far as the involvement of the accused Sunder in the commission of the offence punishable u/s 376 IPC and that of accused Ajay @ Kalia in the commission of the offence punishable u/s 376 IPC r/w Section 109 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 Sunder and Ajay @ Kalia beyond shadows of all reasonable doubts and there is no room for hypothesis, consistent with that of innocence of accused. I, therefore, hold accused Sunder guilty for the offence punishable u/s 376 IPC.
129 of 130 130 FIR No. 177/11 PS - Narela Accused Ajay @ Kalia is hold guilty for the offence punishable u/s 376 IPC r/w Section 109 IPC and convict them thereunder. However, accused Ajay @ Kalia is acquitted for the offences punishable u/s 363/366/376 IPC.
Announced in the open Court (MAHESH CHANDER GUPTA) on 20th Day of November, 2014 Additional Sessions Judge Special Fast Track Court (N/W District), Rohini, Delhi 130 of 130