Delhi District Court
State vs . 1. Pappu on 11 July, 2013
1
FIR No. 345/11
PS - Shahbad Dairy
IN THE COURT OF SH. MAHESH CHANDER GUPTA :
ADDITIONAL SESSIONS JUDGE : SPECIAL FAST TRACK
COURT : NORTHWEST DISTRICT : ROHINI : DELHI
SESSIONS CASE NO. : 18/13
Unique ID No. : 02404R0043562012
State Vs. 1. Pappu
S/o Shiv Charan
R/o Khasra No. 62/1,
Krishan Colony,
Prahlad Pur Banger, Delhi.
FIR No. : 345/11
Police Station : Shahbad Dairy
Under Sections : 376 IPC
Date of committal to session Court : 02/01/2012
Date on which judgment reserved : 06/07/2013
Date of which judgment announced : 11/07/2013
J U D G M E N T
1. Briefly stated the case of the prosecution as unfolded by the report u/s 173 Cr.P.C is as under: 1 of 65 2 FIR No. 345/11 PS - Shahbad Dairy That on 21/10/2011 on receipt of DD No. 27A SI Sat Narain alongwith Constable Leelu Ram when was present at the gate of Police Station Shahbad Dairy at that time Smt. Sheela Devi W/o Harkesh Singh R/o L114, Vijay Vihar, PhaseII, Delhi alongwith the prosecutrix (name withheld being a case U/s 376 IPC) aged about 12 years met them who (prosecutrix) got recorded her statement which is to the effect that, she lives at the above said address with her maternal grand parents and studies in third standard in Kandriya Vidyala, Sector4, Rohini, Delhi. During the Dusshera holidays her mother had brought her (prosecutrix) to her (mother) house at Krishna Colony from Vijay Vihar. On 27/09/2011 at about 9:00 p.m. in the night her mother had gone to her friend (saheli) in the neighbourhood and her two brothers and one sister who are younger to her were sleeping in the room and she was also sleeping in the room. Her father who had gone out had come and started doing teasing (Cher khani) with her and removed all her clothes and committed Galat Kaam (wrong act) with her and since that day he kept on doing galat kaam with her and lastly he did the galat kaam with her on 18/10/2011. On 19/10/2011, her maternal grand mother came to her (prosecutrix) house and then she left with her maternal grand mother to 2 of 65 3 FIR No. 345/11 PS - Shahbad Dairy Vijay Vihar and there she told all the facts about the incident to her on which her maternal grand mother through her niece Kanchan in the evening of 20/10/2011 got made a call at number 100. Her father Pappu has committed galat kaam with her against her consent. Legal action be taken against him. The statement has been heard and is correct. The prosecutrix accompanied by her maternal grand mother with W/Constable Sudesh was sent for medical examination at M.V. Hospital and her medical examination was got conducted vide MLC No. 430/11 on which the doctor had endorsed "alleged history of sexual assault as told by victim on Tuesday". From the statement of the prosecutrix and on inspection of MLC, on finding that an offence u/s 376 IPC appeared to have been committed, the case was got registered and the investigation was taken up by SI Sat Narain. During the course of investigation site plan was prepared at the instance of the prosecutrix. On 21/10/2011 accused Pappu was arrested and his medical examination was got conducted. The sealed pullindas after the medical examination of the prosecutrix and that of the accused as were handed over by the concerned doctor were taken into possession and were sent to the FSL. Statements of witnesses were recorded. Statement of the prosecutrix U/s 3 of 65 4 FIR No. 345/11 PS - Shahbad Dairy 164 Cr. PC was got recorded.
Upon completion of necessary further investigation challan u/s 376 IPC was prepared against accused Pappu 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 376 IPC was made out against accused Pappu. Charge was framed accordingly which was read over and explained to the accused to which he pleaded not guilty and claimed trial.
4. In support of its case prosecution has produced and examined twelve witnesses. PW1 Dr. N. Masand, Medical Officer M.V. Hospital, Pooth Khurd, Delhi, PW2 ASI Sudesh Pal, PW3 Dr. C. 4 of 65 5 FIR No. 345/11 PS - Shahbad Dairy Healer, Medical Officer, Maharishi Valmiki Hospital, PW4 Sh. Neeraj Gaur, Learned MM, PW5 Lady/Constable Sudesh, PW6 Prosecutrix, PW7 Smt. Sheela Devi, PW8 Constable Leelu Ram, PW9 HC Anand Singh, PW10 - Sh. A. K. Srivastava, Deputy Director, DNA Unit, FSL, Rohini, Delhi, PW11 - SI Sat Narain and PW12 Dr. Ekta Kale, Medical Officer, Maharishi Balmiki Hospital, Delhi.
5. In brief the witnessography of the prosecution witnesses is as under : PW1 Dr. N. Masand, Medical Officer M.V. Hospital, Pooth Khurd, Delhi who medically examined the prosecutrix and deposed that on 20/10/2011 at about 8:46 p.m., he examined patient/prosecutrix (name withheld) D/o Pappu with the alleged history of sexual assault on Tuesday as told by patient herself. After preliminary examining the patient, he referred the patient for gynae examination and for injuries and proved his examination at point 'A' on MLC Ex. PW1/A, signed by him at point 'B'.
PW2 ASI Sudesh Pal is the Duty Officer who deposed that 5 of 65 6 FIR No. 345/11 PS - Shahbad Dairy on the intervening night on 2122/10/2011, he was working as Duty Officer at PS - Shahbad Dairy from 12:00 night to 8:00 a.m. On that day at about 2:20 p.m., Constable Leelu Ram brought a tehrir sent by SI Sat Narain and on the basis of which he (PW2) got recorded from the computer operator the FIR No. 345/2011, u/s 376 IPC. He has also brought the FIR register. The other computerized copy is Ex. PW2/A signed by him at point 'A'. He has also made endorsement Ex. PW2/B on the tehrir regarding registration of FIR vide DD No. 4A signed by her at point 'A'. After registration of the FIR the copy of FIR and original tehrir was given to Constable Leelu Ram for handing over the same to SI Sat Narain.
PW3 Dr. C. Healer, Medical Officer, Maharishi Valmiki Hospital, who medically examined the accused vide MLC Ex. PW3/A and deposed that the patient/accused is considered sexually potent. The samples collected are detailed at point 'B' on the MLC Ex. PW3/A and handed over the same to the Police.
PW4 Sh. Neeraj Gaur, Learned MM who recorded the 6 of 65 7 FIR No. 345/11 PS - Shahbad Dairy statement of prosecutrix U/s 164 Cr.P.C. and proved his endorsement Ex. PW4/A for fixing the date as 24/10/2011 for recording the statement of prosecutrix and deposed that on 24/10/2011 prosecutrix was not present and another date as 29/10/2011 was fixed for recording the statement of prosecutrix vide his endorsement Ex. PW4/B and proved the statement U/s 164 Cr.P.C. Ex. PW4/C, signed by him at point 'A' and signed by the prosecutrix at point 'B'. Prosecutrix was identified by the IO SI Sat Narain vide his signature at point 'C'. He also proved his endorsement Ex. PW4/D regarding supply of the copy to the IO of the statement and the proceedings.
PW5 Lady Constable Sudesh who joined the investigation with IO SI Sat Narain and deposed that on 20/10/2011, she alongwith Constable Neelu (be read as Constable Leelu) and SI Sat Narain went to M. V. Hospital for medical examination of prosecutrix (name withheld) and at that time her Nani (Maternal Grand Mother) Smt. Sheela Devi was also with her. Initially prosecutrix refused to undergo the internal medical examination but later on she agreed to it and her medical examination was conducted by the concerned Doctor and after 7 of 65 8 FIR No. 345/11 PS - Shahbad Dairy her medical examination, concerned Doctor kept the sealed pullinda of the prosecutrix with him and IO also recorded her (PW5) statement.
PW6 Prosecutrix, is the victim who deposed regarding the incident and proved her complaint made to the Police Ex. PW6/A signed by her at point 'A' and proved her statement u/s 164 Cr.P.C. Ex. PW4/C, signed by her at point 'B'. She did not identify her clothes (Marked as Mark PX1 for the purpose of reference). She did not support the prosecution and was also cross examined by the Learned Addl. PP for the State.
PW7 Smt. Sheela Devi is the maternal grand mother of the prosecutrix who deposed regarding the incident disclosed to her by the prosecutrix. She did not support the prosecution and was also cross examined by the Learned Addl. PP for the State.
PW8 - Constable Leelu Ram who on 20/10/2011 joined the investigation with the IO SI Sat Narain and deposed on the investigational aspects and proved the arrest memo of the accused Pappu 8 of 65 9 FIR No. 345/11 PS - Shahbad Dairy Ex. PW8/A, his personal search Ex. PW8/B and the seizure memo of the handing over of the sealed pullindas by the concerned doctor after the medical examination of accused Pappu Ex. PW8/C, signed by him at point 'A'.
PW9 HC Anand Singh is the MHC(M) who proved the relevant entries of register no. 19 Ex. PW9/A (colly.), copy of the RC No. 24/21/12 of register no. 21 Ex. PW9/B and copy of receipt of FSL Ex. PW9/C. PW10 Sh. A. K. Srivastava, Dy. Director, DNA Unit, FSL Rohini, Delhi, who conducted the DNA finger printing analysis and proved the DNA report Ex. PW10/A, allelic data Ex. PW10/B signed by him at points 'A'.
PW11 SI Sat Narain, is the Investigating Officer (IO) of the case who deposed on the investigational aspects and deposed that on 20/10/2011, on receipt of DD No. 27 A Ex. PW11/A alongwith Constable Leelu Ram proceeded for the spot and when had reached at 9 of 65 10 FIR No. 345/11 PS - Shahbad Dairy the gate of PS, they met Smt. Sheela Devi alongwith prosecutrix. He recorded the statement of the prosecutrix Ex. PW6/A attested her signature at point 'A', bearing his signature at point 'B' and further deposed that prosecutrix was got medically examined in M.V. Hospital, Pooth Khurd and proved rukka Ex. PW11/B signed by him at point 'A' and proved the arrest memo of accused Pappu Ex. PW8/A, his personal search memo Ex. PW8/B, signed by him at points 'B' and the site plan Ex. PW11/C, signed by him at point 'A' and deposed that accused was medically examined and proved the seizure memo of the sealed exhibits handed over by the doctor Ex. PW8/C, signed by him at point 'B' and the application for recording the statement of the prosecutrix U/s 164 Cr.P.C. Ex. PW11/D, signed by him at point 'A' and the application for obtaining the copy of the statement U/s 164 Cr.P.C. of the prosecutrix Ex. PW11/E, signed by him at point 'A'.
PW12 Dr. Ekta Kale, Medical Officer, Maharishi Balmiki Hospital, Delhi who gynaecologically examined the prosecutrix and deposed that on 20/10/2011, one patient/prosecutrix (name withheld) D/o Pappu, age 13 years was brought to Hospital for medical examination.
10 of 65 11 FIR No. 345/11 PS - Shahbad Dairy She was initially examined by CMO on duty and thereafter she was referred to SR, Gynae whereupon she (PW12) examined a patient. Patient (had) given alleged history of physical assault by her father. According to patient, father had intercourse with her many times since one month. Last incident on 18/10/2011. After last incidence, patient had taken bath to change her clothes. On per abdomen examination, there was no injury, soft. On local examination, hymen ruptured, admit little finger easily, samples were taken. Her examination on the MLC Ex. PW1/A is at point 'X' to 'X' bearing her signature at point 'A'.
The testimonies of the prosecution witnesses shall be dealt with in details during the course of appreciation of evidence.
6. Statement of accused Pappu was recorded u/s 313 Cr.P.C. wherein he pleaded innocence and false implication and opted not to lead any defence evidence.
7. Learned Counsel for the accused submitted that the prosecution has failed to prove the aspect and the circumstances under which a story was developed by the prosecution that prosecutrix was 11 of 65 12 FIR No. 345/11 PS - Shahbad Dairy raped by her father when her mother had gone to a neighbour. Neither the mother has been examined nor the neighbours at least to prove that the accused had any access to her daughter being alone at that time.
Learned Counsel for the accused further submitted that the prosecution also failed to prove that at all her mother had gone or not. The prosecution has also failed to prove after the commission of the alleged offence the prosecutrix had any interaction regarding the incident with any of the brother and sister who admittedly were present at home.
Learned Counsel for the accused further submitted that the prosecution deliberately did not examine the mother, brother and sister of the prosecutrix because no such incident had occurred.
Learned Counsel for the accused further submitted that accused is a blind person and during the trial before the alleged date of incident, the house/property in which accused was residing was sold to someone by the mother of the prosecutrix and her maternal grand mother. This Court is not only a "Kayada Dhish" but is also a "Nyaya 12 of 65 13 FIR No. 345/11 PS - Shahbad Dairy Dhish" who has unlimited powers to investigate such facts and to investigate the matter of the mother of the prosecutrix who is related to a Police official, Tika Ram belonging to the same District. The IO deliberately did not investigate such allegations in order to save the Police official of his own Department.
Learned Counsel for the accused further submitted that the prosecution has also failed to establish regarding the antecedents of the accused from the neighbours as there was any such incident had noticed by any one of them during last one month from the date of incident.
The prosecution failed to join any public witness from the nearby admittedly residential area.
Learned Counsel for the accused further submitted that the IO has not made any investigation from anyone except the arrest of accused at midnight at 2:30 a.m. IO had not explained anywhere in the 173 Cr.P.C. report that why he has not made any investigation from the neighbours after the midnight arrest of the accused. Even the other 13 of 65 14 FIR No. 345/11 PS - Shahbad Dairy family member and neighbour have not been cited in the list of witnesses qua the personal search memo and arrest memo of the accused.
Learned Counsel for the accused further submitted that PW6 - prosecutrix has denied the allegations levelled against the accused. The Court may recall the state of mind set of the prosecutrix during the examination as she was not able to answer any of the question which were being repeated by the prosecutor. She has also deposed and explained what she has said and understood the meaning of Galat Kaam. She has also explained that the accused was annoyed when she was talking to a boy with whom she intend to marry. She has denied other part of the investigation also.
Learned Counsel for the accused further submitted that PW7 - the maternal grand mother (Naani) was also declared hostile. The material witnesses are PW6 and PW7 only and they have not supported the prosecution case and the prosecution has failed to prove its case beyond reasonable doubt.
14 of 65 15 FIR No. 345/11 PS - Shahbad Dairy Learned Counsel for the accused further submitted that there is a material contradiction regarding the visit to her house i.e. house of her Naani. PW7 says Police came there at the house and IO says PW6 and PW7 met him at the gate of PS - Shahbad Dairy. It has not been explained by the IO in his statement that after meeting them if he brought them to inside the PS or recorded the statement of the complainant at which place, in the Police Station or out of the Police Station or in the house of Naani or after the arrest of the accused.
Learned Counsel for the accused further submitted that there are material contradictions in the investigation and in the site plan. The place of prosecutrix, place of the accused and place of presence of other family members has not been shown.
Learned Counsel for the accused further submitted that prosecutrix has not proved the presence of Lady Constable Sudesh - PW5 at the place of occurrence as her signature does not appear on the personal search memo or arrest memo.
15 of 65 16 FIR No. 345/11 PS - Shahbad Dairy Learned Counsel for the accused further submitted that the Court may appreciate the endorsement in the proceedings in the Chamber dated 21/10/2011 wherein Sh. Jagmohan Singh, Learned Link MM returned the prosecutrix back as she was not making her statement voluntary which only proved that she was influenced by her Naani and pressurised by the IO and the prosecutrix was handed over in the custody of Naani on 01/11/2011. This fact shows that statement u/s 164 Cr.P.C. was not a statement of a free mind child. She gave the statement under the influence of the Police as is evident from her statement during the trial.
Learned Counsel for the accused further submitted that on 21/10/2011, IO was directed to bring the prosecutrix after the Diwali Holidays but that IO was in a hurry to move the application before the different Judge and produced the prosecutrix three days before the fixed date and got recorded the statement of the prosecutrix before another Link MM, Sh. Neeraj Gaur on 29/10/2011.
Learned Counsel for the accused further submitted that the 16 of 65 17 FIR No. 345/11 PS - Shahbad Dairy presence of PW8 - Constable Leelu Ram is also in doubt as he has stated in his examinationinchief that he was on duty from 8:00 a.m. to 8:00 p.m. While in his crossexamination he has deposed that he has not stated in his statement that he was on duty from 8:00 a.m. to 8:00 p.m. Learned Counsel for the accused further submitted that PW9 - HC Angad Singh in his crossexamination has admitted that there is no mention of time in the entries of register no. 19 regarding the deposition of the pullindas in the Malkhana.
Learned Counsel for the accused further submitted that the prosecution has failed to prove its case beyond reasonable doubt and prayed for the acquittal of the accused on the charge levelled against him.
Learned Counsel for the accused referred to cases and are reported as 'Abbas Ahmad Choudhary Vs. State of Assam', 2010(12)SCC 115, 'Ramdas and Ors. Vs. State of Maharashtra', (2007) 2 SCC 170, 'Alamelu & Anr. Vs. State', (2011) 2 SCC 385, 'Krishan Kumar Malik Vs. State of Haryana', (2011) 7 SCC 130, 'Shashi Chaudhary Vs. Ram 17 of 65 18 FIR No. 345/11 PS - Shahbad Dairy Kumar & Anr.' 2011 Cri.L.J. 2565.
8. While the Learned Addl. PP for the State, on the other hand, submitted that the testimonies of the prosecution witnesses are cogent and consistent and the contradictions and discrepancies as pointed out are minor and not the material one's and do not affect the credibility of the witnesses and the prosecution has proved its case beyond reasonable doubt.
9. I have heard the Learned Addl. PP for the State and the Learned Counsel for the accused and have also carefully perused the entire record.
10. The charge for the offence punishable u/s 376 IPC against accused Pappu is that on 27/09/2011, in the night at time unknown and thereafter from 28/09/2011 to 18/10/2011 in day and night time, at Krishna Colony, Prahlad Pur, Delhi within the jurisdiction of PS - Shahbad Dairy, he committed rape upon the prosecutrix, his daughter aged about 13 years without her consent and against her wishes.
18 of 65 19 FIR No. 345/11 PS - Shahbad Dairy
11. It is to be mentioned that as a matter of prudence, in order to avoid any little alteration in the spirit and essence of the depositions of the material witnesses, during the process of appreciation of evidence at some places their part of depositions have been reproduced, in the interest of justice.
AGE OF THE PROSECUTRIX
12. PW6 Prosecutrix in her statement recorded U/s 164 Cr.P.C. on 29/10/2011 Ex. PW4/C has stated her age as 13 years. She has also stated her age as 13 years in her statement made to the police Ex. PW6/A, recorded on 21/10/2011.
The said factum that the age of prosecutrix was 13 years on the date of the alleged incident has not been disputed by the accused. Nor any evidence to the contrary has been led or proved on the record by the accused. Moreover, during his statement recorded U/s 313 Cr.P.C. on 26/02/2013 accused Pappu has also stated it to be correct that her daughter/prosecutrix was aged around 13 years.
The relevant part of the statement of accused Pappu u/s 313 19 of 65 20 FIR No. 345/11 PS - Shahbad Dairy Cr.P.C. recorded on 26/02/2013 reads as under : "Q1. It is in evidence against you that PW6 - prosecutrix (name withheld) age around 13 years is your daughter. What have you to say? Ans. It is correct."
In view of above and in the circumstances, it stands proved on the record that PW6 Prosecutrix was aged around 13 years as on the date of alleged incident on 27/09/2011.
MEDICAL EVIDENCE OF THE PROSECUTRIX
13. PW1 Dr. N. Masand, Medical Officer M.V. Hospital, Pooth Khurd, Delhi who medically examined the prosecutrix and deposed that on 20/10/2011 at about 8:46 p.m., he examined patient/prosecutrix (name withheld) D/o Pappu with the alleged history of sexual assault on Tuesday as told by patient herself. After preliminary examining the patient, he referred the patient for gynae examination and for injuries and proved his examination at point 'A' on MLC Ex. PW1/A, signed by him at point 'B'.
Despite grant of opportunity PW1 Dr. M. Masand was not 20 of 65 21 FIR No. 345/11 PS - Shahbad Dairy crossexamined on behalf of accused.
PW12 Dr. Ekta Kale, Medical Officer, Maharishi Balmiki Hospital, Delhi who gynaecologically examined the prosecutrix and deposed that on 20/10/2011, one patient/prosecutrix (name withheld) D/o Pappu, age 13 years was brought to Hospital for medical examination. She was initially examined by CMO on duty and thereafter she was referred to SR, Gynae whereupon she (PW12) examined a patient. Patient (had) given alleged history of physical assault by her father. According to patient, father had intercourse with her many times since one month. Last incident on 18/10/2011. After last incidence, patient had taken bath to change her clothes. On per abdomen examination, there was no injury, soft. On local examination, hymen ruptured, admit little finger easily, samples were taken. Her examination on the MLC Ex. PW1/A is at point 'X' to 'X' bearing her signature at point 'A'.
During her crossexamination PW12 - Dr. Ekta Kale negated the suggestions that she has not conducted the examination from portion 'X' to 'X' on MLC Ex. PW1/A of the patient/prosecutrix or that she has noted down the examination from portion 'X' to 'X' on the MLC 21 of 65 22 FIR No. 345/11 PS - Shahbad Dairy Ex. PW1/A of her own on the basis of the story narrated by the Police.
On careful perusal and analysis of the testimony of PW12 Dr. Ekta Kale, the same is found to be clear, cogent and reliable. There is nothing in her crossexamination so as to impeach her creditworthiness. She has candidly deposed regarding the gynaecological examination of the prosecutrix as was conduced by her.
There is nothing in her statement to suggest that she had any animus against the accused to falsely implicate him in the case.
In view of above and in the circumstances, the medical examination of PW6 - prosecutrix vide MLC Ex. PW1/A at point 'A' and her gynaecological examination from point 'X' to 'X' on MLC Ex. PW1/A stands proved on the record.
VIRILITY OF THE ACCUSED
14. PW3 Dr. C. Healer, Medical Officer, Maharishi Valmiki Hospital, who medically examined the accused vide MLC Ex. PW3/A and deposed that the patient/accused is considered sexually potent. The 22 of 65 23 FIR No. 345/11 PS - Shahbad Dairy samples collected are detailed at point B on the MLC Ex. PW3/A and handed over to the police.
During his crossexamination PW3 Dr. C. Healer stated it to be correct that in the MLC Ex. PW3/A it is mentioned that the patient was on anti epileptic drugs for about 1½ years, three months back.
There is nothing in the crossexamination of PW3 Dr. C. Healer so as to impeach his creditworthiness.
In the circumstances, it stands proved on the record that accused Pappu was sexually potent.
DNA FINGER PRINTING EVIDENCE
15. As per DNA Report Ex. PW10/A, the description of the sources, DNA examination, result of examination and conclusion reads as under : DESCRIPTION OF THE SOURCE Forensic Sample received on 04/05/2012 Parcel 1 : One envelope sealed with the seal of 'MS MB HOSPITAL POOTH KHURD' containing exhibit '1a', '1b', '1c', '1d', '1e', '1f' &'1g' said to be of victim (name withheld).
23 of 65 24 FIR No. 345/11 PS - Shahbad Dairy Exhibit 1a : One microslide having faint smear wrapped in leucoplast labelled as 'Vaginal slide'.
Exhibit 1b : A piece of wet cotton wool swab on a small wooden stick kept in an injection vial labelled as 'Vaginal swab'. Exhibit 1c : One test tube labelled as 'Blood sample plain vial' is returned unexamined.
Exhibit 1d : One test tube labelled as 'Blood sample EDTA vial' is returned unexamined.
Exhibit 1e : One injection vial labelled as 'Urine sample' is returned unexamined.
Exhibit 1f : One injection vial labelled as 'Pubic hair' is returned unexamined.
Exhibit 1g : One injection vial labelled as 'Rectal swab' is returned unexamined.
Parcel 2 : One envelope sealed with the seal of 'MS MB HOSPITAL POOTH KHURD' labelled as 'inner garments underwear', is returned unexamined.
Parcel 3 : One envelope sealed with the seal of 'MS MB HOSPITAL POOTH KHURD' labelled as 'penile smear', is returned unexamined.
24 of 65 25 FIR No. 345/11 PS - Shahbad Dairy Parcel 4 : One envelope sealed with the seal of 'MS MB HOSPITAL POOTH KHURD' containing exhibit '4'.
Exhibit 4 : A piece of gauze cloth having greenish brown stains described as 'Blood of accused Pappu'.
Parcel 5 : One envelope sealed with the seal of 'MS MB HOSPITAL POOTH KHURD' labelled as 'pubic hair', is returned unexamined. Parcel 6 : One envelope sealed with the seal of 'MS MB HOSPITAL POOTH KHURD' labelled as 'blood sample in EDTA vial', is returned unexamined.
DNA EXAMINATION The exhibits '1a', '1b' & '4' were subjected to DNA isolation. DNA was isolated from the source of exhibits '1a', '1b' & '4'. DNA profile was generated from the source of exhibits '1a', '1b' & '4' by using AmpFL STR MiniFiler PCR Amplification Kit. STR analysis was used for each of the sample. Date was analyzed by using GeneMapper IDX Software. RESULTS OF EXAMINATION The alleles from the source of exhibit '4' [Blood gauze of accused Pappu] are accounted in the alleles from the source of exhibit '1a' [Microslide] & '1b' [Cotton wool swab].
25 of 65 26 FIR No. 345/11 PS - Shahbad Dairy CONCLUSION The DNA profile of exhibit '4' (Blood gauze of accused Pappu) are similar with DNA profile from the source of exhibits '1a' (Microslide) & '1b' (Cotton wool swab).
ENCLOSURE Annexure - Allele chart of Exhibits '1a', '1b' & '4'. Note :
1. Remnants of the exhibits have been sealed with seal of AKS FSL DELHI.
2. The exhibits '1a', '1b' & '4' were sufficient to conclude the results of the case.
As per Genotype analysis for establishing identity of accused using MICROSATELLITES reads as under :
i) D21S11 ii) D7S820 iii) CSF1P0 iv) D13S317 v) D16S539 vi) D2S1338
vii) D18S51 viii) FGA & AMELOGENIN 26 of 65 27 FIR No. 345/11 PS - Shahbad Dairy Loci Microslide Cotton wool swab Blood gauze of Exhibit '1a' Exhibit '1b' accused Pappu Allele Data Allele Data Exhibit '4' Allele Data D21S11 31.2 31.2 31.2 31.2 31.2 31.2 D7S820 8 8 8 8 8 8 CSF1P0 12 12 12 12 12 12 D13S317 11 11 11 11 11 11 D16S539 11 13 11 13 11 13 D2S1338 20 25 20 25 20 25 D18S51 12 16 12 16 12 16 FGA 23 24 23 24 23 24 AMELOGENIN X Y X Y X Y The allelic data of the source of the exhibit 4 are ACCOUNTED in the allele data of the source of exhibit 1a & 1b On careful perusal and analysis of the DNA Report Ex. PW10/A and the allelic data Ex. PW10/B, it clearly shows that as per DNA Report Ex. PW10/A, the DNA profile of exhibit '4' (Blood gauze of accused Pappu) are concluded and HELD TO BE SIMILAR with DNA profile from the source of exhibits '1a' (Microslide labelled as 27 of 65 28 FIR No. 345/11 PS - Shahbad Dairy Vaginal slide of prosecutrix) and '1b' (Cotton wool swab, labelled as Vaginal swab of prosecutrix). As per the allelic data Ex. PW10/B, the allelic data of the source of the exhibit '4' (Blood gauze of accused Pappu) is HELD TO BE ACCOUNTED in the allelic data of the source of exhibits '1a' (Microslide labelled as Vaginal slide of prosecutrix) and '1b' (Cotton wool swab, labelled as Vaginal swab of prosecutrix).
16. The whole case of the prosecution hinges on the testimonies of PW6 Prosecutrix and PW7 Smt. Sheela Devi, maternal grand mother (Nani) of the prosecutrix.
In case of "Rameshbhai Mohanbhai & Ors. Vs. State of Gujrat" 2010 XI AD (S.C.) 53, the Hon'ble Supreme Court held that : "It is settled legal proposition that the evidence of a prosecution witness cannot be rejected in toto merely because the prosecution chose to treat him as hostile and crossexamined him. The evidence of such witnesses cannot be treated as effaced or washed off the record altogether but the same can be accepted to the extent that their version is found to be dependable on a careful scrutiny thereof. [Vide Bhagwan Singh Vs. State of Haryana 1976 SCC (Cri) 7, Rabindra Kumar Dey Vs. State of Orissa 1976 SCC (Cri) 566, Syad Akbar Vs. 28 of 65 29 FIR No. 345/11 PS - Shahbad Dairy 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 the prosecution or defence can be relied upon. A similar view has been reiterated by this Court in Balu Sonba Shinde Vs. State of Maharashtra 2002 VII AD (S.C.) 249 = 2003 SCC (Cri) 112, Gagan Kanojia Vs. State of Punjab (2008) 1 SCC (Cri) 109, Radha Mohan Singh Vs. State of U.P. 2006 I AD (S.C.) 417 = (2006) 1 SCC (Cri) 661, Sarvesh Narain Shukla Vs. Daroga Singh (2009) 1 SCC (Cri) 188 and Subbu Singh Vs. State (2009) 2 SCC (Cri) 1106."
In a criminal prosecution when a witness is crossexamined and contradicted with the leave of the Court, by the party calling him, his evidence cannot, as a matter of law, be treated as washed off the record altogether. It is for the Judge to consider the fact in each case whether as a result of such examination and contradiction, the witness stands thoroughly discreted or can still be believed in regard to a part of his testimony. If the Judge finds that in the process, the credit of the witness has not been completely shaken, he may, after reading and considering the evidence of the witness, as a whole, with due caution and care, accept, in the light of the other evidence on the record, that part of his testimony which he finds to be creditworthy and act upon it. If in a given case, the whole of the testimony of the witness is impugned and in the process, the witness stands squarely and totally discredited the Judge should, as a matter of prudence, discard his evidence in toto ; (Ref. Pandappa Hanumappa Nanamar V. State of Karnataka, (1997) 3 29 of 65 30 FIR No. 345/11 PS - Shahbad Dairy Supreme Today 63).
Evidence of a prosecution witness cannot be rejected in India merely because the prosecution chose to treat him as hostile and crossexamine him. Evidence of such witness cannot be treated as effaced or washed off the record altogether but the same can be accepted to the extent his version is found to be dependable or careful scrutiny thereof ; (Ref. Prithi Vs. State of Haryana, (2010) 8 SCC 536).
The fact that witnesses have been declared hostile does not result in automatic rejection of their evidence. Even the evidence of a hostile witness if it finds corroboration from the facts of the case may be taken into account while judging the guilt of an accused ; (Ref. Lalla Srinivasa Rao Vs. State of Andhra Pradesh, AIR 2004 SC 1720).
17. Now, let the testimonies of PW6 Prosecutrix and PW7 Smt. Sheela Devi, maternal grand mother (Nani) of the prosecutrix be perused and analysed.
PW6 Prosecutrix in her examinationinchief has deposed which is reproduced and reads as under: "At the time of incident I was studying in third standard and was residing in the house of my Nani (Maternal Grand Mother). The name of my Nani (Maternal Grand Mother is (Sheela). The house of my Nani is in Vijay Vihar, Delhi. During Dusshera holidays in the year, 2011, I alongwith my Nani had done to stay in the house of my parents at 30 of 65 31 FIR No. 345/11 PS - Shahbad Dairy Vijay Vihar and my Nani after leaving me at my parental house had came back to her house. At my parental house nothing had happened with me during my stay there. In my parental house there were my two brothers and one sister besides my mother and father. I stayed for about 45 days at my parental house. At my parental house I used to sleep inside room with my mother. Both my brothers and sister used to sleep with my father. My mother used to remain at the home during the period of my stay there.
I had made a complaint to the Police against my father for Galat Kaam. The said complaint was made by me as I was talking to one boy and my father had seen me talking with a boy and he objected for the same and gave beatings to me and on this in anger I made the said complaint to the Police. I told the said fact of my beating by my father to my Nani and at the instance of my Nani, I made a complaint to the Police. My said complaint is Ex. PW6/A, signed by me at point 'A'. Galat Kaam I mean that my father had given beatings to me. Thereafter, Police had got me medically examined at hospital. My clothes were also taken into possession by the concerned doctor. My statement u/s 164 Cr.P.C. was also got recorded from the Court which is Ex. PW4/C and signed by me at points B and I had said the same thing which I have stated today in the Court in my statement u/s 164 Cr.P.C.
PW6 Prosecutrix did not identify the underwear (Marked as Mark PX1 for the purpose of reference).
PW6 - Prosecutrix was also crossexamined by the Learned Addl. PP for the State after seeking permission as she was resiling from 31 of 65 32 FIR No. 345/11 PS - Shahbad Dairy her previous statement. The crossexamination as conducted by the Learned Addl. PP for the State is reproduced and reads as under : "It is wrong to suggest that the underwear Mark PX1 belongs to me or that underwear Mark PX1 was taken into possession by the concerned doctor at the time of my medical examination. It is wrong to suggest that I had stated in my statement Ex. PW6/A that it was my mother who had brought me to my parental house from my Nani's house and not my Nani who had brought me to my parental house during Dusshera holidays (confronted with statement Ex. PW6/A from portion A to A1 where it is so recorded). It is wrong to suggest that I had stated in my statement Ex. PW6/A that on 27/09/2011 my mother had gone to the house of her friend in the neighbourhood and when I was sleeping with my brothers and sister in the meantime my father had came to the house and thereafter he had put off my clothes and started touching me (Cher Char) and thereafter committed wrong act with me and my father committed wrong act with me again and again during that day onwards and last time he had committed wrong act with me on 18/10/2011 (confronted with statement Ex. PW6/A from portion B to B1 where it is so recorded).
I had not stated in statement Ex. PW6/A that from the house of accused/my father Pappu thereafter I went to my Nani's house with my Nani and when I narrated the whole incident to my Nani, then my Nani with her niece Kanchan made a call at no. 11 on 20/10/2011 and I had given the statement before Police about wrong act committed by my father (confronted with statement Ex. PW6/A from portion C to C1 where it is so recorded).
It is further wrong to suggest that I had stated in my statement recorded by the Learned Metropolitan Magistrate that my 32 of 65 33 FIR No. 345/11 PS - Shahbad Dairy father had only put off my clothes and did obscene act (Cher Char) with me. It is further wrong to suggest that my father was moving his hand on my legs for about two minutes and thereafter he left me alone there. It is further wrong to suggest that I am deposing falsely under the influence of my mother who had also not taken any action when I informed her initially. It is further wrong to suggest that I have stated in my statement u/s 164 Cr.P.C. that my mother had not taken any heed initially when I narrated her about the aforesaid fact. It is further wrong to suggest that I am deposing falsely because of pressure of my other family members. It is wrong to suggest that I am deposing falsely."
PW6 Prosecutrix during her crossexamination by the Learned Counsel for the accused has deposed which is reproduced and reads as under : "The contents of complaint Ex. PW6/A was not read over to me before I made to sign the same. I had given the statement u/s 164 Cr.P.C. before Learned Metropolitan Magistrate under the influence of Police officials. It is correct to suggest that I made the complaint Ex. PW6/A while I was angry due to beatings given by my father. It is correct that no putting off my clothes and touching (Cher Char) was done with me by my father."
PW7 Smt. Sheela Devi, Maternal GrandMother (Nani) in her examinationinchief has deposed which is reproduced and reads as 33 of 65 34 FIR No. 345/11 PS - Shahbad Dairy under : "Prosecutrix (name withheld) is my Dehwati i.e. my daughter's Dolly's daughter. Prosecutrix (name withheld) was residing with me since she was aged about five years. My daughter Dolly and son in law Pappu alongwith their other children were residing at Kishan Colony. Prosecutrix (name withheld) used to visit her parental house oftenly. In the year, 2011, prosecutrix (name withheld) had gone to her parent's house during Dusshera holidays and after leaving her there I came back to my home. After a few days may be 10 or 15 days of her staying there she telephoned me of taking her back to my home and I took her from her parental house to my house. Prosecutrix after reaching at my home told me about giving to her beatings by my son in law Pappu. I could not understand the meaning of her such telling by the prosecutrix as I am illiterate. Police was got telephoned by my niece Kanchan at no. 100. Police reached over there and conducted the proceedings. I do not know whether my statement was recorded by the Police or not."
PW7 Smt. Sheela Devi was also crossexamined by the Learned Addl. PP for State after seeking permission as she was resiling from her previous statement during which she stated that : "I do not know as to whether any my statement was recorded by the Police on 21/10/2011. It is wrong to suggest that my statement was taken on 21/10/2011. It is wrong to suggest that I had stated in the statement dated 21/10/2011 that my Dewati (prosecutrix - name withheld) has stated that her father Pappu has committed Galat 34 of 65 35 FIR No. 345/11 PS - Shahbad Dairy Kaam (wrong act) with her. (Confronted from Portion 'A' to 'A1' of the statement Mark PW7/A) where it is so recorded. It is wrong to suggest that a compromise has been effected of my Dewati/prosecutrix (name withheld) with her father, the accused as such I have deliberately twisted the true facts. It is wrong to suggest that because of fear of breaking relations with accused my son in law, I am deposing falsely and in his favour."
During her crossexamination by the Learned counsel for the accused, PW7 Smt. Sheela Devi has deposed that : "I have not signed any paper. I have not deposed because of fear of breaking relations with the accused".
On careful perusal and analysis of testimony of PW6 Prosecutrix recorded on 02/01/2013, it is clearly indicated that she has clearly and categorically deposed in her examinationinchief that she made a complaint against her father for Galat Kaam. The said complaint was made by her as she was talking to one boy and her father had seen her talking with a boy and he (her father) objected for the same and gave beatings to her and on this in anger she made the said complaint to the police. She told the said fact of her beatings by her father to her Nani (PW7) and at the instance of her Nani she made a complaint to the police and proved the said complaint PW6/A, signed by her at point 'A'. She 35 of 65 36 FIR No. 345/11 PS - Shahbad Dairy also deposed, Galat Kaam, she means that her father had given beatings to her. Thereafter, police had got her medically examined at hospital, her clothes were also taken by the concerned doctor. Her statement U/s 164 Cr.P.C. was also got recorded from the court which is Ex. PW4/C, signed by her at points B and has deposed that she had said the same thing which she has stated today in the court in her statement U/s 164 Cr.P.C.
During her crossexamination as was conducted by the Learned Counsel for the accused she has clearly stated that the contents of complaint Ex. PW6/A was not read over to her before she was made to sign the same. She had given the statement U/s 164 Cr.P.C. before Learned Metropolitan Magistrate under the influence of police officials. She admitted the suggestion that she made the complaint Ex. PW6/A while she was angry due to beatings given by her father. She admitted it to be correct that no putting off her clothes and touching (Cher Char) was done with her by her father.
PW4 Sh. Neeraj Gaur, Learned MM who recorded the statement of the Prosecutrix , proved the statement of the prosecutrix U/s 164 Cr.P.C. as Ex. PW4/C, signed by him at point 'A' and by the 36 of 65 37 FIR No. 345/11 PS - Shahbad Dairy prosecutrix at point 'B' and the certificate regarding the true and full account of the statement as was made to him by the prosecutrix as well as his satisfaction that the prosecutrix was in fit state of mind and free from any fear , undue influence and coercion and also that she was ready to give a voluntary statement.
In view of the clear and categorical testimony of PW4 Sh. Neeraj Gaur, Learned MM, the part of the testimony of PW6 Prosecutrix that she had given the statement U/s 164 Cr.P.C. before the Learned Metropolitan Magistrate under the influence of police official does not inspire confidence.
As regards the deposition of the prosecutrix made during her crossexamination by the Learned counsel for the accused that the contents of the complaint Ex. PW6/A was not read over to her before she was made to sign the same is in self contradiction to her statement as deposed in her examinationinchief while proving her complaint Ex. PW6/A, signed by her at point A. PW6 Prosecutrix in her examination inchief has specifically deposed that she had made a complaint to the 37 of 65 38 FIR No. 345/11 PS - Shahbad Dairy police against her father for Galat Kaam. Galat Kaam she means that her father had given beatings to her. The fact as deposed by PW6 Prosecutrix that the complaint Ex. PW6/A made by her as she was talking to one boy and her father had seen her talking with a boy and he objected for the same and gave beatings to her and on anger she made the said complaint to the police and told the said fact of her beatings by her father to her Nani and at the instance of her Nani she made a complaint to the police Ex. PW6/A, does not inspire confidence in view of the forensic evidence on the record. It clearly indicates that the true and actual facts have been concealed and twisted by PW6 Prosecutrix for the reasons best own to her. It is well settled that witnesses may lie but not the circumstances which, in the instant case have been proved by the forensic evidence on the record.
The testimony of PW7 Smt. Sheela, Nani of the Prosecutrix, on careful perusal and analysis is also found to indicate that the true and actual facts have been concealed and twisted by her (PW7 Sheela) for the reasons best known to her. PW6 Prosecutrix as discussed herein above had told the facts to PW7 Smt. Sheela, her Nani and at her instance she (PW6 Prosecutrix) made a complaint to the 38 of 65 39 FIR No. 345/11 PS - Shahbad Dairy Police. Had there been any aggrivement of PW6 Prosecutrix for her beatings by her father due to the reasons of his seeing , of her talking to one boy, then for the act of beating the expression Galat Kaam would not have been used by her (PW6 Prosecutrix) and sight cannot be lost of the fact that PW6 Prosecutrix was studying in Third Standard and had been residing in the house of her Nani (PW7). PW6 Prosecutrix was in fact a visitor to her parental house when the Galat Kaam was committed upon her by her father. It is only when she (Prosecutrix) had returned to her Nani's house then only after disclosing the incident to her Nani, the complaint Ex. PW6/A came to be lodged . It clearly indicates that at her parental house, PW6 Prosecutrix could not gather the courage to lodge a complaint for the Galat Kaam done with her by her father, accused Pappu.
The twisting given to the word 'Galat Kaam' and the oscillations made by PW6 prosecutrix in her testimony had been belied by the DNA Test Report Ex. PW10/A and allelic data Ex. PW10/B. At the cost of repetition, as per DNA Report Ex. PW10/A, the DNA profile of exhibit '4' (Blood gauze of accused Pappu) are concluded and held to be similar with DNA profile from the source 39 of 65 40 FIR No. 345/11 PS - Shahbad Dairy of exhibits '1a' (Microslide labelled as Vaginal slide of prosecutrix) and '1b' (Cotton wool swab, labelled as Vaginal swab of prosecutrix). As per the allelic data Ex. PW10/B, the allelic data of the source of the exhibit '4' (Blood gauze of accused Pappu) is held to be accounted in the allelic data of the source of exhibits '1a' (Microslide labelled as Vaginal slide of prosecutrix) and '1b' (Cotton wool swab, labelled as Vaginal swab of prosecutrix).
Had 'Galat Kaam' been and meant giving of beating to prosecutrix by her father, as has been deposed by PW6 - prosecutrix, in her testimony, then and in that case neither the DNA profile of exhibit '4' (Blood gauze of accused Pappu) would have been similar at all with DNA profile from the source of exhibits '1a' (Microslide labelled as Vaginal slide of prosecutrix) and '1b' (Cotton wool swab labelled as Vaginal swab of prosecutrix). Nor the allelic data of the source of the exhibit '4' (Blood gauze of accused Pappu) would have been accounted in the allelic data of the source of exhibits '1a' (Microslide labelled as Vaginal slide of prosecutrix) and '1b' (Cotton wool swab, labelled as Vaginal swab of 40 of 65 41 FIR No. 345/11 PS - Shahbad Dairy prosecutrix).
On a conjoint reading of the medical evidence, the gynaecological examination from portion 'X' to 'X' on the MLC Ex. PW1/A of the prosecutrix, MLC of the prosecutrix Ex. PW1/A together with the MLC of accused Pappu Ex. PW3/A, in the light of the DNA Report Ex. PW10/A, allelic data Ex. PW10/B, it clearly indicates the taking place of sexual intercourse activity and that the sexual intercourse was committed by accused Pappu with PW6 - Prosecutrix, his daughter.
In the circumstances, it stands clearly and conclusively established on the record that accused Pappu had committed sexual intercourse with PW6 - prosecutrix, his daughter.
As per the DNA Report Ex. PW10/A and allelic data Ex. PW10/B, prosecution has discharged its initial burden of proving the similarity of DNA profile of exhibit '4' (Blood gauze of accused Pappu) with the DNA profile from the source of exhibits '1a' (Microslide labelled as Vaginal slide of prosecutrix) and '1b' (Cotton wool swab, labelled as Vaginal swab of prosecutrix) and 41 of 65 42 FIR No. 345/11 PS - Shahbad Dairy accounting of allelic data of the source of the exhibit '4' (Blood gauze of accused Pappu) in the allelic data of the source of exhibits '1a' (Microslide labelled as Vaginal slide of prosecutrix) and '1b' (Cotton wool swab, labelled as Vaginal swab of prosecutrix). Accused was under an obligation to explain, how and in what circumstances, the DNA profile of exhibit '4' was similar with DNA profile from source of exhibits '1a' & '1b' and how and in what circumstances the allelic data of source of exhibit '4' are accounted in the allelic data of the source of exhibits '1a' & '1b'. The absence of such an explanation both in section 313 Cr.P.C. statement of the accused and his omission to lead any evidence in this regard and his complete denial becomes an additional link in the prosecution case.
18. 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 42 of 65 43 FIR No. 345/11 PS - Shahbad Dairy page 369 which reads as : "Thus to constitute the offence of rape it is not necessary that there should be complete penetration of penis with emission of semen and rupture of hymen. Partial penetration of the penis within the labia majora or the vulva or pudenda with or without emission of semen or even an attempt at penetration is quite possible to commit legally the offence of rape without producing any injury to the genitals or leaving any seminal stains. In such a case the medical officer should mention the negative facts in his report, but should not give his opinion that no rape had been committed. Rape, is crime and not a medical condition. Rape is a legal term and not a diagnosis to be made by the medical officer treating the victim. The only statement that can be made by the medical officer is that there is evidence of recent sexual activity. Whether the rape has occurred or not is a legal conclusion, not a medical one."
In Parikh's Textbook of Medical jurisprudence and Toxicology, the following passage is found:
"Sexual intercourse: In law, this term is held to mean the slightest degree of penetration of the vulva by the penis with or without emission of semen. It is therefore quite possible to commit legally the offence of rape without producing any injury to the genitals or leaving any seminal stains."
43 of 65 44 FIR No. 345/11 PS - Shahbad Dairy 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 PW6 - Prosecutrix in the light of medical evidence, the gynaecological examination from portion 'X' to 'X' on MLC Ex. PW1/A of the prosecutrix, MLC of accused Pappu Ex. PW3/A and DNA Report Ex. PW10/A, allelic data Ex. PW10/B as discussed hereinabove; the act of performing of sexual intercourse activity by complete penetration of the penis with emission of semen or by partial penetration of the penis with emission of semen, within the labia majora or the vulva or pudenda stands proved.
In the circumstances, it stands clearly and conclusively established on the record, that accused Pappu had committed sexual intercourse with PW6 - prosecutrix, his daughter,without her consent.
19. Learned Counsel for the accused submitted that the prosecution has failed to prove the aspect and the circumstances under 44 of 65 45 FIR No. 345/11 PS - Shahbad Dairy which a story was developed by the prosecution that prosecutrix was raped by her father when her mother had gone to a neighbour. Neither the mother has been examined nor the neighbours at least to prove that the accused had any access to her daughter being alone at that time. Learned Counsel for the accused submitted that the prosecution also failed to prove that at all her mother had gone or not. The prosecution has also failed to prove after the commission of the alleged offence the prosecutrix had any interaction regarding the incident with any of the brother and sister who admittedly were present at home. Learned Counsel for the accused submitted that the prosecution deliberately did not examine the mother, brother and sister of the prosecutrix because no such incident had occurred.
I have carefully perused and analysed the evidence on the record.
It is nowhere been disputed by accused Pappu either in the crossexamination of PW6 - prosecutrix or in the crossexamination of PW7 - Smt. Sheela Devi, maternal grand mother (Nani) of the prosecutrix that PW6 - prosecutrix had not come to stay at her parental 45 of 65 46 FIR No. 345/11 PS - Shahbad Dairy house at Krishna Colony, Shahbad Dairy during the Dusshera holidays in the year, 2011, during the period, when the crime was allegedly committed upon her (PW6 - prosecutrix) by her father, accused Pappu, from her maternal grand mother's (Nani) house at Vijay Vihar, Delhi. Nor it is disputed by the accused that after her (PW6 - prosecutrix) stay at her parental house at Krishna Colony, Shahbad Dairy, she was taken back by maternal grand mother / PW7 - Smt. Sheela Devi, at her house at Vijay Vihar, Delhi and it is from here (House of PW6 - Smt. Sheela Devi) that Police was informed at No. 100 and PW6 - prosecutrix made complaint to the Police on 21/10/2011 Ex. PW6/A signed by her at point 'A'. Further, accused has also not disputed his presence at his house at Krishna Colony, Shahbad Dairy, Delhi during the period when PW6 - prosecutrix had come to stay there at her parental house during the Dusshera holidays, in the year, 2011.
The Hon'ble Supreme Court in case "Takhaji Hiraji Vs Thakore Kubersing Chamansing", 2001 IV AD (S.C) 393 has observed that : "It is true that if a material witness, which would unfold the genesis of the incident or an essential part of the prosecution case, not convincingly brought to fore otherwise, or where there is a gap or 46 of 65 47 FIR No. 345/11 PS - Shahbad Dairy infirmity in the prosecution case which would have been supplied or made good by examining a witness which though available is not examined, the prosecution case can be termed as suffering from a deficiency and withholding of such a material witness would oblige the Court to draw an adverse inference against the prosecution by holding that if the witness would have been examined would not have supported the prosecution case. On the other hand if already overwhelming evidence is available and examination of other witnesses would only be a repetition or duplication of the evidence already adduced. Non examination of such other witnesses may not be material. In such a case the Court ought to scrutinies the worth of the evidence adduced. The Court of facts must ask itself Whether in the facts and circumstances of the case, it was necessary to examine such other witness, and if so, whether such witness was available to be examined and yet was being withheld from the Court. If the answer be positive then only a question of drawing an adverse inference may arise.
It is not the case of the accused that mother, brother and sister of the prosecutrix were cited as witnesses in the list of witnesses but have not been produced and examined and have been withheld by the prosecution. Nor it is the case of the prosecution that mother, brother and sister of the prosecutrix were present at the time of the incident or have witnessed the incident. Even if accused wanted to know the reasons for nonciting of the said witnesses in the list of witnesses, it was for the accused to crossexamine PW11 - SI Sat Narain (IO) on this aspect. For 47 of 65 48 FIR No. 345/11 PS - Shahbad Dairy failure to do so, accused is to blame himself and none else. The accused cannot be heard saying that the said material witnesses were withheld by the prosecution therefore adverse inference be drawn against the prosecution.
The Hon'ble Supreme Court in case "Dahari & Ors. Vs. State of U.P." 2012 XI AD (S.C.) 297, in para 11 has held as under : "11. So far as the nonproduction of Ashok the most material witness to the case is concerned, it is evident from the record that during the crossexamination of Sarvdev Singh, IO (PW4), none of the said accused voiced their concerns or raised any apprehension regarding the nonexamination of Ashok. He was the only competent witness who would have been fully capable of explaining correctly the factual situation. In such a situation the appellants cannot be permitted to advance an argument stating that since the most material witness was withheld by the prosecution therefore, adverse inference should be drawn against them."
In the circumstances, for the nonciting and for non examination of mother, brother and sister of the prosecutrix does not itself falsify the case of the prosecution which is otherwise proved on record by clear, cogent and convincing evidence.
In view of above and in the circumstance, there is no substance in the plea so raised by the Learned Counsel for the accused.
48 of 65 49 FIR No. 345/11 PS - Shahbad Dairy
20. Learned Counsel for the accused submitted that the prosecution has also failed to establish regarding the antecedents of the accused from the neighbours as there was any such incident had noticed by any one of them during last one month from the date of incident. Learned Counsel for accused further submitted that the prosecution failed to join any public witness from the nearby admittedly residential area.
I have carefully perused and analysed the evidence on the record.
As regards the plea that no inquiry from the neighbours of the incident was made, does not itself falsify the prosecution case, which is otherwise proved by clear, cogent and convincing evidence on the record. Moreover, the incident has taken place within the confines of four walls, how the neighbours would have been able to say anything on it.
Further, in case Nirmal Singh & Ors. Vs. State 2011 III AD (DELHI) 699, the Hon'ble Delhi High Court has held that : 49 of 65 50 FIR No. 345/11 PS - Shahbad Dairy "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."
In the circumstance, there is no substance in the plea so raised by the Learned Counsel for the accused.
21. Learned Counsel for the accused submitted that the IO has not made any investigation from anyone except the arrest of accused at midnight at 2:30 a.m. IO had not explained anywhere in the 173 Cr.P.C. report that why he has not made any investigation from the neighbours after the midnight arrest of the accused. Even the other family member and neighbour have not been cited in the list of witnesses qua the personal search memo and arrest memo of the accused.
I have carefully perused and analysed the evidence on the record.
It was for the accused to crossexamine PW11 - SI Sat Narain IO on the aspects as to why the other family members of the 50 of 65 51 FIR No. 345/11 PS - Shahbad Dairy accused and neighbour have not been cited in the list of witnesses qua the personal search memo and arrest memo of the accused. For failure to do so accused is to blame himself and none else.
However, with regard to joining of public persons/neighbours, PW11 - SI Sat Narain in his crossexamination has specifically deposed that : "Efforts were made to join the public persons/persons from the neighbourhood. No names and their particulars were recorded in my case diary as they were not ready to disclose their names and particulars. Nor any show cause notice was given to such persons who declined to join the proceedings."
At the cost of repetition, in Nirmal Singh's case (Supra), 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."
In the circumstance, there is no substance in the plea so raised by the Learned Counsel for the accused.
22. Learned Counsel for the accused submitted that there is a material contradiction regarding the visit to her house i.e. house of her 51 of 65 52 FIR No. 345/11 PS - Shahbad Dairy Naani/PW7 - Smt. Sheela Devi. PW7 says Police came there at the house and IO / PW11 - SI Sat Narain says PW6 - prosecutrix and PW7 - Smt. Sheela Devi met him at the gate of PS - Shahbad Dairy. It has not been explained by the IO in his statement that after meeting them if he brought them to inside the PS or recorded the statement of the complainant at which place, in the Police Station or out of the Police Station or in the house of Naani or after the arrest of the accused.
I have carefully perused and analysed the evidence on the record.
Learned Counsel for the accused appears to have either misread or not read the testimony of PW11 - SI Sat Narain, IO.
PW11 - SI Sat Narain in his examinationinchief has clearly deposed as to what he did and proceeded with after receipt of DD No. 27A Ex. PW11/A. It is pertinent to reproduce the relevant part of examination inchief of PW11 - Sat Narain which reads as under : "On 20/10/2011, I was posted as SubInspector in PS - Shahbad Dairy. On that day, I received the DD No. 27A, copy of which is Ex. PW11/A and thereafter I alongwith Constable Lilu Ram proceeded 52 of 65 53 FIR No. 345/11 PS - Shahbad Dairy for the spot and when we reached at the gate of PS there we met Smt. Sheela Devi alongwith her Grand Daughter (Natin) prosecutrix (name withheld) age around thirteen years. I recorded statement of prosecutrix (name withheld) which is already exhibited as Ex. PW6/A and attested her signature at point 'A', bearing my signature at point 'B'. Thereafter, prosecutrix (name withheld) was taken for medical examination alongwith Lady Constable Sudesh and Smt. Sheela in M. V. Hospital, Pooth Khurd. She was medically examined. I prepared rukka Ex. PW11/B, bearing my signature at point 'A' and same was handed over to Constable Lilu Ram who was already with us, for getting the FIR registered. We came back to the PS and Constable Lilu Ram handed over to me copy of FIR and original rukka. Thereafter, I alongwith Constable Lilu Ram and Smt. Sheela reached Krishna Colony, Khasra No. 62, Prahlad Pur Bangar and from ther (there) at the instance of Sheela and prosecutrix (name withheld) apprehended the accused Pappu..."
The testimony of PW11 - SI Sat Narain is also been corroborated by PW8 - Constable Leelu Ram.
There is nothing in the crossexamination of PW11 - SI Sat Narain and PW8 - Constable Leelu Ram so as to impeach their creditworthiness.
In the circumstance, there is no substance in the plea so raised by the Learned Counsel for the accused.
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23. Learned Counsel for the accused further submitted that there are material contradictions in the investigation and in the site plan. The place of prosecutrix, place of the accused and place of presence of other family members has not been shown.
I have carefully perused and analysed the evidence on the record.
PW11 - SI Sat Narain IO has proved the site plan Ex. PW11/C bearing his signature at point 'A'. He has categorically deposed and proved the site plan Ex. PW11/C relevant to the incident involved in the present case.
During his crossexamination PW11 - SI Sat Narain has specifically deposed that : "In the site plan Ex. PW11/C, the rooms of the house from where the accused was arrested have been shown. Two rooms have been shown, one room in the front and the other room on the back side. It is correct that the description regarding the partition of the said two rooms is not mentioned in the site plan. No measurement of the room in which allegedly the incident took place has been mentioned in the site plan. Nor the measurement of any other room has been mentioned in the site plan. The adjoining houses in the surroundings of the house in question 54 of 65 55 FIR No. 345/11 PS - Shahbad Dairy have not been shown in the site plan."
It was for the accused to crossexamine PW11 - SI Sat Narain on the aspect regarding which plea has been raised, for failure to do so, accused is to blame himself and none else.
In the circumstance, there is no substance in the plea so raised by the Learned Counsel for the accused.
24. Learned Counsel for the accused submitted that prosecutrix has not proved the presence of Lady Constable Sudesh - PW5 at the place of occurrence as her signature does not appear on the personal search memo or arrest memo.
I have carefully perused and analysed the evidence on the record.
Perusal of the testimony of PW5 - Constable Sudesh shows that she is not the witness to the arrest and personal search of the accused but had got conducted the medical examination of prosecutrix from the M. V. Hospital.
PW5 - Lady/Constable Sudesh has deposed that on 55 of 65 56 FIR No. 345/11 PS - Shahbad Dairy 20/10/2011, she alongwith Constable Neelu (Be read as Constable Leelu) and SI Sat Narain went to M. V. Hospital for medical examination of prosecutrix (name withheld) and at that time her Nani (Maternal Grand Mother) Smt. Sheela Devi was also with her. Initially prosecutrix refused to undergo the internal medical examination but later on she agreed to it and her medical examination was conducted by the concerned Doctor and after her medical examination, concerned Doctor kept the sealed pullinda of the prosecutrix with him and IO also recorded her (PW5) statement.
In the circumstance, there is no substance in the plea so raised by the Learned Counsel for the accused.
25. Learned Counsel for the accused submitted that the Court may appreciate the endorsement in the proceedings in the Chamber dated 21/10/2011 wherein Sh. Jagmohan Singh, Learned Link MM returned the prosecutrix back as she was not making her statement voluntary which only proved that she was influenced by her Naani and pressurised by the IO and the prosecutrix was handed over in the custody of Naani on 01/11/2011. This fact shows that statement u/s 164 Cr.P.C. was not a 56 of 65 57 FIR No. 345/11 PS - Shahbad Dairy statement of a free mind child. She gave the statement under the influence of the Police as is evident from her statement during the trial.
I have carefully perused and analysed the evidence on the record.
The proceedings conducted for the recording of the statement of PW6 - prosecutrix u/s 164 Cr.P.C. and the statement of PW6 - prosecutrix u/s 164 Cr.P.C. Ex. PW4/C as well as the testimony of PW4 Sh. Neeraj Gaur, Learned MM who recorded the statement of the prosecutrix u/s 164 Cr.P.C. are on the record, which are self indicative of the procedure adopted for the recording of the statement u/s 164 Cr.P.C. of the PW6 - prosecutrix, in the circumstances noting more can be read in the same.
In the circumstance, there is no substance in the plea so raised by the Learned Counsel for the accused.
26. Learned Counsel for the accused submitted that on 21/10/2011, IO was directed to bring the prosecutrix after the Diwali Holidays but that IO was in a hurry to move the application before the 57 of 65 58 FIR No. 345/11 PS - Shahbad Dairy different Judge and produced the prosecutrix three days before the fixed date and got recorded the statement of the prosecutrix before another Link MM, Sh. Neeraj Gaur on 29/10/2011.
I have carefully perused and analysed the evidence on the record.
At the cost of repetition, as discussed hereinabove, the proceedings conducted for the recording of the statement of PW6 - prosecutrix u/s 164 Cr.P.C. and the statement of PW6 - prosecutrix u/s 164 Cr.P.C. Ex. PW4/C as well as the testimony of PW4 Sh. Neeraj Gaur, Learned MM who recorded the statement of the prosecutrix u/s 164 Cr.P.C. are on the record, which are self indicative of the procedure adopted for the recording of the statement u/s 164 Cr.P.C. of the PW6 - prosecutrix, in the circumstances noting more can be read in the same however, it was for the accused to crossexamine PW11 - SI Sat Narain on the aspect regarding which plea has been raised. For failure to do so, accused is to blame himself and none else.
In the circumstance, there is no substance in the plea so raised by the Learned Counsel for the accused.
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27. Learned Counsel for the accused submitted that the presence of PW8 - Constable Leelu Ram is also in doubt as he has stated in his examinationinchief that he was on duty from 8:00 a.m. to 8:00 p.m. While in his crossexamination he has deposed that he has not stated in his statement that he was on duty from 8:00 a.m. to 8:00 p.m. I have carefully perused and analysed the evidence on the record.
PW8 - Constable Leelu Ram in his examinationinchief has deposed that : "On 20/10/2011, I was posted as Constable in PS - Shahbad Dairy and I was on emergency duty from 8:00 a.m. to 8:00 p.m."
During his crossexamination PW8 - Leelu Ram has deposed that : "I have not stated in my statement that I was on duty from 8:00 a.m. to 8:00 p.m."
PW8 - Constable Leelu Ram in his examinationinchief has deposed that he was on emergency duty from 8:00 a.m. to 8:00 p.m. at PS - Shahbad Dairy but in his crossexamination has clearly deposed 59 of 65 60 FIR No. 345/11 PS - Shahbad Dairy that he has not stated such fact to the IO in his statement u/s 161 Cr.P.C.. Though, it is a discrepancy but is a minor one, and it does not go to the root of the matter nor it is the case of the accused that any evidence to the contrary has been produced and proved on record.
The Hon'ble Supreme Court in 'Bharwada Bhoginbhai Hirjibhai Vs. State of Gujrat' (1983) 3 SCC 217, has held much importance cannot be attached to minor discrepancies for the reasons :
1) By and large a witness cannot be expected to possess a photographic memory and to recall the details of an incident. It is not as if a video tape is replayed on the mental screen; 2) Ordinarily it so happens that a witness is overtaken by events. The witness could not have anticipated the occurrence which so often has an element of surprise. The mental faculties therefore cannot be expected to be attuned to absorb the details.
The Hon'ble Supreme Court of India in case Leela Ram Vs. State of Haryana (1999) 9 SCC 525 has observed that there are bound to be some discrepancies in the narration of certain witnesses when they speak out details. The corroboration of evidence with mathematical niceties cannot be expected in criminal cases. Minor embellishments, there may be, but variations by reasons therefore should not render the 60 of 65 61 FIR No. 345/11 PS - Shahbad Dairy evidence of eye witnesses unbelievable.
It is a settled principle of law that every improvement or variation cannot be treated as an attempt to falsely implicate the accused by the witness. The approach of the Court has to be reasonable and practicable. (Reference Ashok Kumar Vs. State of Haryana [(2010) 12 SCC 350] and Shivlal and Another Vs. State of Chhattisgarh [(2011) 9 SCC 561]).
The Hon'ble Supreme Court in Para 21 of the case titled Kuria & Anr. Vs. State of Rajasthan 2012 XI AD (S.C.) 376 has held that : "21.............. This Court has repeatedly taken the view that the discrepancies or improvements which do not materially affect the case of the prosecution and are insignificant cannot be made the basis of doubting the case of the prosecution. The Courts may not concentrate too much on such discrepancies or improvements. The purpose is to primarily and clearly sift the chaff from the grain and find out the truth from the testimony of the witnesses. Where it does not affect the core of the prosecution case, such discrepancy should not be attached undue significance. The normal course of human conduct would be that while narrating a particular incident, there may occur minor discrepancies. Such discrepancies may even in Law render credential to the depositions. The improvements or variations must essentially relate to the material particulars of the prosecution case. The alleged improvements and 61 of 65 62 FIR No. 345/11 PS - Shahbad Dairy variations must be shown with respect to material particulars of the case and the occurrence. Every such improvement, not directly related to the occurrence is not a ground to doubt the testimony of a witness. The credibility of a definite circumstance of the prosecution case cannot be weakened with reference to such minor or insignificant improvements. Reference in this regard can be made to the judgments of this Court in Kathi Bharat Vajsur and Another Vs. State of Gujrat [(2010) 5 SCC 724], Narayan Chetanram Chaudhary and Another Vs. State of Maharashtra [(2000) 8 SCC 457], D. P. Chadha Vs. Triyugi Narain Mishra and Others [(2001) 2 SCC 205] and Sukhchain Singh Vs. State of Haryana and others [(2002) 5 SCC 100].
In the circumstance, there is no substance in the plea so raised by the Learned Counsel for the accused.
28. Learned Counsel for the accused submitted that PW9 - HC Angad Singh in his crossexamination has admitted that there is no mention of time in the entries of register no. 19 regarding the deposition of the pullindas in the Malkhana.
I have carefully perused and analysed the evidence on the record.
PW9 - HC Anand Singh is the MHC(M) who has clearly 62 of 65 63 FIR No. 345/11 PS - Shahbad Dairy deposed in his crossexamination that : "It is correct that there is no time mentioned in the entries when the alleged pullindas were deposited in the Malkhana and were taken out from the Malkhana."
Learned Counsel for the accused failed to explain as to what benefit he intends to reap by raising said plea. Nor anything has been produced or proved on record by the accused to indicate that by non mentioning of the time in the entries in Register No. 19 any rule/regulation has been breached.
In the circumstance, there is no substance in the plea so raised by the Learned Counsel for the accused.
29. Learned Counsel for the accused referred to cases and are reported as 'Abbas Ahmad Choudhary Vs. State of Assam', 2010(12)SCC 115, 'Ramdas and Ors. Vs. State of Maharashtra', (2007) 2 SCC 170, 'Alamelu & Anr. Vs. State', (2011) 2 SCC 385, 'Krishan Kumar Malik Vs. State of Haryana', (2011) 7 SCC 130, 'Shashi Chaudhary Vs. Ram Kumar & Anr.' 2011 Cri.L.J. 2565.
I have carefully gone through the same. With due respect 63 of 65 64 FIR No. 345/11 PS - Shahbad Dairy 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".
30. In view of above and in the circumstances, prosecution has thus proved beyond shadows of all reasonable doubts that on 27/09/2011 in the night and thereafter from 28/09/2011 to 18/10/2011 in day and night time, at Krishna Colony, Prahlad Pur, Delhi, accused Pappu committed rape upon the prosecutrix, his daughter aged about 13 years without her consent and against her wishes.
I accordingly, hold accused Pappu guilty for the offence punishable u/s 376 IPC and convict him thereunder.
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31. In view of above discussion, I am of the considered opinion that as far as the involvement of accused Pappu in the commission of the offence u/s 376 IPC is concerned, the same is sufficiently established by the cogent and reliable evidence and in the ultimate analysis the prosecution has been able to bring the guilt home to the accused Pappu beyond shadows of all reasonable doubts and there is no room for hypothesis, consistent with that of innocence of accused. I, therefore hold accused Pappu guilty for the offence punishable u/s 376 IPC and convict him thereunder.
Announced in the open Court (MAHESH CHANDER GUPTA) on 11th Day of July, 2013 Additional Sessions Judge Special Fast Track Court (N/W District), Rohini, Delhi 65 of 65