Delhi District Court
State vs . Harish S/O Om Prakash on 28 May, 2015
IN THE COURT OF SH. VIRENDER BHAT, A.S.J. (SPECIAL
FAST TRACK COURT), DWARKA COURTS, NEW DELHI.
SC No.26/14
Unique Case ID No.02405R0364922013
State Vs. Harish s/o Om Prakash
R/o Gali No.4, Gullar Road,
Marwadi Mohalla, Aligarh,
UP.
Date of Institution :12.07.2013.
FIR No.112/12 dated 12.09.2012.
U/s.376 IPC.
P.S. Inderpuri.
Date of reserving judgment/Order :23.05.2015.
Date of pronouncement : 28.05.2015.
JUDGMENT
1. The accused Harish has been charge sheeted by the Police for the offences u/s 376/511/506 IPC. The accused Harish is uncle of prosecutrix 'J' (real name has been withheld in order to conceal her identity).
2. The FIR, in this case, has been registered on the following statement of the prosecutrix:-
"I reside at the above given address. After passing my tenth class, I have been staying at home and doing the house hold work. My father has been sick. At the instance of a lady residing in Inderpuri, my mother sent me to Karnal, Haryana on 18.8.2012 alongwith two persons in their car. I do not know the complete address of that place. There I was SC No.26/14 Page 1 of 21 raped by four persons aged 25-30 years. I fell sick after four days. They made a call to my mother asking her to take back her daughter and to return Rs. 10,000/- to him. She was told that her daughter is of no use and keeps on weeping. Upon this, my mother, reached Karnal on 24.08.2012, returned Rs. 10,000/- to them and brought me home. I made a call to my grandfather Gainda Lal on 9.9.2012 and he alongwith his whole family reached our house in Inderpuri yesterday i.e. 11.09.2012, he took me to the house of his lawyer friend H.R. Kaushik at D318/56, Mahavir Enclave, Part III and they made a call at telephone No.100 from there........"
3. The aforesaid statement of the prosecutrix was recorded by SI Ram Niwas who had reached the house of H.R. Kaushik, Advocate pursuant to the call made at telephone No.100 which had been transmitted to PS Inderpuri and recorded as DD No.27A. He brought the prosecutrix as well as her grand father Gainda Lal to the Police Station. He produced the prosecutrix before SI Meena Yadav, who prepared rukka on the basis of the aforesaid statement of the prosecutrix and got the FIR registered. She then started the investigation. She took the prosecutrix to RML Hospital during the same night where her medical examination was conducted. She seized the exhibits given to her by the doctor after medical examination of the prosecutrix. During the day on 12.09.2012, prosecutrix was produced before a ld. Metropolitan Magistrate in Dwarka Court who recorded her statement u/s 164 Cr.P.C. and then she was lodged in Children Home. In this statement, the prosecutrix besides mentioning that she had been SC No.26/14 Page 2 of 21 raped at Karnal by one Krishan, also stated that her uncle i.e. accused Harish had raped her when she was just 12 years of age when he found her alone in the house. Her statement u/s 161 Cr.P.C. was also recorded on the same date i.e. 12.09.2012 by W SI Meena Yadav wherein she stated that Krishan had raped her in his house at Karnal where she had been sent by her mother for doing domestic work and also that she was raped by her uncle Harish in her house on 03.09.2012 and then threatened her that if she disclosed anything to anybody, he would kill her. She further stated that earlier also, uncle Harish had raped her and she had narrated the incident to her family but nobody believed her.
4. Krishan and his brother in law Ashok came to be arrested from their residence in Karnal and after the completion of investigation against them, charge sheet was filed by IO Inspector Aarti Sharma on 10.12.2012. It may be pertinent to mention her that investigation of this case had been transferred to Crime Branch where it was entrusted to Aarti Sharma. Since the prosecutrix had made allegations of rape as well as attempt to rape against her uncle Harish also, the investigation qua Harish continued further.
5. A supplementary statement of prosecutrix was recorded by the IO on 4.12.2012 in the Children Home in presence of Welfare Officer Ms. Poonam Rana wherein also she reaffirmed her allegations of rape against her uncle Harish. She also showed to the IO on 30.4.2013, the room on the second floor of house No.C-118, J.J. Colony, Inderpuri where she had been raped by Harish in the year 2009. IO recorded the statement of the house SC No.26/14 Page 3 of 21 owner Ram Prasad. The prosecutrix also showed to the IO the room on the ground floor of the house No.C-95, JJ Colony Inderpuri where she had been raped by Harish on 3.9.2012. She told the IO that Mattress and bed sheet on which she was raped by Harish on 3.9.2012, was thrown away by her mother on the railway tracks, J.J. Colony. The IO made a thorough search for the mattress and bed sheet near the railway track but the same could not found. The prosecutrix also stated that the clothes which she was wearing at the time of incident were taken by her grand father Gainda Lal. She took the IO to the house of Gainda Lal bearing No.C-39, New TC Camp, 12 sq. yds., Raghubir Nagar, Delhi. The IO serached the whole house but could not locate the clothes of the prosecutrix. The accused Harish was arrested on 31.05.2013 from his house in Aligarh UP. He was got medically examined in BSA Hospital, Rohini. The investigating Officer then recorded the statements of witnesses u/s 161 Cr.P.C.
6. After completion of investigation, against accused Harish, a supplementary charge sheet was filed before the concenred ld. MM on 12.07.2013. The case was then committed to court of Sessions for trial. Initially the charge u/s 376 IPC was framed against the accused on 5.9.2013. However, it was found later on that the charge framed against accused needs to be amended as well as altered and pursuant to order dated 9.3.2015, passed in this regard, fresh charges u/s 376/511 IPC, u/s 376 IPC and u/s 506 IPC were framed against the accused on the same date.
7. The accused refused to sign the charge despite asked SC No.26/14 Page 4 of 21 to do so by this court repeatedly. He even was not prepared to say whether he pleads guilty or not. In these circumstances this court proceeded on the assumption that accused does not plead guilty and hence trial was held.
8. The prosecution has examined six witnesses to prove the charges against the accused. The accused was examined u/s 313 Cr.P.C. on 11.05.2015 wherein he denied all the incriminating facts and circumstances put to him. However, he refused to sign that statement also.
9. I have heard ld. APP, ld. counsel for accused and have perused the entire material on record.
10. Ld. APP submitted that except the FIR, the prosecutrix has consistently stated in all other statements that she was raped by her uncle Harish firstly, in the year 2009 and then on 3.9.2012. She further submitted that nothing has come on record during the cross examination of prosecution witnesses suggesting that the prosecutrix or her mother had any reason to fabricate a false version of the incidents of rape against the accused Harish and to implicate him falsely in this case. She submitted that the prosecution has succeeded in establishing the guilt of accused beyond reasonable doubt and hence is liable to be convicted.
11. Ld. counsel for the accused submitted that the accused has been falsely implicated in this case merely on account of property dispute between his family and the family of the prosecutrix. He further submitted that there are various SC No.26/14 Page 5 of 21 discrepancies in the prosecution case and evidently the prosecutrix has been making improvements upon her previous statements at every stage which create a doubt in the prosecution case. He argued that the testimony of the prosecutrix is of such a nature that it cannot be accepted to be true on its face value and there is no other evidence on record which lends assurance to her testimony. He prayed for acquittal of the accused.
12. As already noted herein above, there is no allegation against the accused Harish in the FIR which has been recorded on the basis of the statement Ex. PW2/A of the prosecutrix, reproduced herein above.
13. The prosecutrix has levelled allegations against the accused Harish in her statement u/s 161 Cr.P.C. and in the statement u/s 164 Cr.P.C. Ex. PW2/B both dated 12.09.2012. In the statement Ex. PW2/B, the prosecutrix has stated that the accused Harish had raped her when she was just 12 years old. She has not mentioned the date, month and year of the incident. In the statement u/s 161 Cr.P.C. she has stated that the accused Harish had raped her on 03.09.2012 at her house and had raped her earlier also.
14. The prosecutrix has been examined in this court as PW2. She has deposed about the first rape incident in the following words:-
"In the year 2009, I alongwith my parents and younger brother was residing in C-118, JJ Colony, Inderpuri, New Delhi. My uncle i.e. accused Harish was SC No.26/14 Page 6 of 21 also residing with us at that time. One day in the year 2009 itself, I do not remember the exact date and month, when I was present alone in the house, accused Harish came there and started teasing me. Thereafter he removed my Pajama as well as his pant, laid upon me and tried to have sexual intercourse with me forcibly. However, I felt intense pain and started weeping, as a result of which he could not complete the act. I started shouting and upon hearing my shouts, two or three ladies residing in the neighbourhood came to our house and asked Harish why I am crying. He told them that I felt pain in my finger for which reason I am crying. I had suffered injury in a finger of my right hand about two or three days ago which had to be stitched. I could not narrate the incident to those ladies as the accused Harish had threatened me. After those ladies left, accused Harish again threatened me that he would kill me if I narrated the incident to anybody."
15. She further deposed that she somehow mustered courage and narrated the incident to her parents the next day and her parents had restrained Harish from entering their house. She has mentioned the second incident dated 03.09.2012 as under:-
"On 03.9.2012, I was present alone in my house. At that time, we were residing in C-95, JJ Colony, Inderpuri. My father was sick and was admitted in a hospital. My mother was also in the hospital to take SC No.26/14 Page 7 of 21 care of my father. At about 4 p.m. or 5 p.m. when I was watching TV in my house alone, accused Harish came there and started teasing me. He threatened me not to raise any voice. I became scared and hence remained quiet. Thereafter, he removed my Suit Salwar which I was wearing, also took off his clothes and committed forcible sexual intercourse with me. The accused had threatened me not to narrate the incident to anybody or otherwise he would kill me. As I was already in a tense state of mind on account of illness of my father, I became further scared on account of threat of the accused and hence could not narrate the incident to anybody. I also did not find it proper to apprise my mother about the incident as she remained in a disturbed state of mind on account of illness of my father."
16. She further deposed that she, however, gathered courage on 09.09.2012 and made a call to her grand father Gainda Lal saying that her uncle Harish has committed forcible sexual intercourse with her. Gainda Lal also advised her not to narrate the incident to anybody and told her that he would come to their house on the next date. She deposed that Gainda Lal alongwith her paternal aunts Geeta and Santosh, grand mother Rama and another uncle Lala came to her house on 10.09.2012. She told them that she has been raped by her uncle Harish and she wants to go back to her parents. Gainda Lal asked her about clothes which she was wearing at the time of rape incident. She showed them the clothes, which were taken by Gainda Lal. He also took SC No.26/14 Page 8 of 21 her mobile phone. Thereafter on the pretext of taking her to her father, they took her to the house of lawyer Mr. Kaushik. Ganda Lal and Geeta talked to the lawyer and then she was taken to the house of another paternal aunt Kanta where she was kept for the night. Gainda Lal again took her to the residence of Mr. Kaushik Advocate on 11.09.2012. Both threatened her not to tell anybody that Harish has done anything to her and told her to do whatever they would ask her to do. They told her to take the names of the persons to whose house she had gone for doing domestic work in Karnal and threatened her that in case she did not disclose name of those persons and took the name of Harish, they would kill her father by injecting poison into his body.
17. She further deposed that police officials came to the house of Mr. Kaushik and Gainda Lal told them that she has been raped at Karnal. Police officials did not make any enquiry from her and only took her signatures on a written piece of paper which she identified as Ex. PW2/A. Thereafter she alongwith Gainda Lal was brought to the Police station Dabri from where they were taken to Police Station Inderpuri. Her parents were summoned to the Police Station but she was not allowed to talk to her parents. She was then taken to hospital for medical examination and from the hospital she was brought to the court where she was produced before the ld. Magistrate who recorded her statement u/s 164 Cr.P.C. which she proved as Ex. PW2/B. She deposed that she had told the ld. Magistrate whatever her grand father had asked her to say but still she told the ld. MM that she had been raped by her uncle Harish. Thereafter she was lodged in Nirmal Chhaya. Her mother visited Nirmal Chhaya the next day and met her. She SC No.26/14 Page 9 of 21 narrated the rape incident to her mother and told her that in order to shield accused Harish, her grand father Ganda Lal had projected a story that she has been raped at Karnal. She further deposed that after her release from Nirmal Chhaya, she showed the rooms in house No.C-95, JJ Colony, Inderpuri and in C-118, JJ Colony Inderpuri to Inspector Aarti Sharma on 30.4.2013 where she had been raped by accused Harish.
18. In the cross examination, she stated that Harish was residing with them since the year 2008 and remained with them for about one year and thereafter he returned to his native village. She admitted that Harish did not come to their house thereafter till 3.9.2012. She deposed that she could not tell the police officials on 11.09.2012 that nothing had happened with her in Karnal as her grandfather Gainda Lal was with her and she was under his threat. She stated that Gainda Lal was with her till her statement was recorded by the ld. MM in the court. Police Officials did not make any independent enquiry from her and they did not even make any enquiry from her in presence of her parents. She stated that her parents had not returned from the hospital by the time Gainda Lal alongwith other persons had come to their house in the morning of 10.09.2012 and took her alongwith them. She saw her parents for the first time on 11.09.2012 in the evening in the Police Station. She deposed that her mother used to come to the house once in a day during the period of hospitalisation of her father. Her mother used to take bath and have meals before again leaving for the hospital. Her father was discharged from the hospital on 10.09.2012 but she did not narrate the incident dated 03.09.2012 to her mother as she was already under mental agony SC No.26/14 Page 10 of 21 on account of hospitalisation of her father.
19. She did not recollect whether the door of the room was closed or open when the ladies from neighbourhood had come to their house upon hearing her cries at the time of incident of the year 2009. Those ladies had entered the house but did not come inside that room and hence she did not see those ladies. They did not meet her. They met only Harish and left from outside the room. She deposed that her mother had thrown the mattress on the railway track on 10.9.2012 but did not know the reason why it was done. She further deposed that when Harish had come to her house on 3.9.2012, her brother was not there as he had gone outside to play. She further denied all the suggestions put to her by ld. counsel for accused.
20. The mother of prosecutrix has been examined as PW3. She deposed as under:-
"I am the mother of prosecutrix Jaya. On 11.9.2012 we were residing at C-95, Inderpuri, JJ Colony, New Delhi. My husband had remained admitted in R.M.L. Hospital from 2.9.2012 to 10.9.2012 and I had brought him home on 10.9.2012. Three police officials from PS Inderpuri came to my house on 11.9.2012 at about 7.30 pm. Two were in police uniform and one was wearing white clothes. They told me that my daughter Jaya is in the police station and asked me to accompany them to the police station. I reached police station alongwith them and found my daughter Jaya and my father-in-law Gainda Lal present SC No.26/14 Page 11 of 21 there. I was not allowed to talk to Jaya. The police officials told me that Jaya has been sexualy assaulted and asked me if I am aware about the same. I told them that I am not aware about the same. They asked me to accompany Jaya to hospital for medical examination. The police officials took Jaya and myself to RML Hospital where medical examination of Jaya was conducted. We remained in the hospital till 6 am in the morning and then were brought to PS Inderpuri. We were kept in separate rooms in the police station and were not allowed to talk to each other. During the day of 12.9.2012, I and Jaya were brought to court. Jaya was produced before a ld. Magistrate, who recorded her statement. I was kept outside. I was not allowed to talk to Jaya in the court also. From court we were taken to Nirmal Chhaya and Jaya was lodged there. I was brought to PS Inderpuri, where my signature was taken on some documents and then I was dropped home.
21. She further deposed that she visited the police station on 13.09.2012 as she had been asked to produce the birth certificate of her daughter 'J'. She met SI Meena Yadav who told her that 'J' is in Nirmal Chhaya and is desperate to meet her. Accordingly, she visited Nirmal Chhaya on the same day i.e. 13.09.2012 and met her daughter 'J' who told her that she has been raped by Harish uncle. 'J' also told her that she had called her grand father Gainda Lal to narrate the rape incident to him and Gainda Lal alongwith his daughters Geeta and Santosh, wife Rama and brother Lala had come to their house and advised her not to narrate the incident to anybody else. 'J' also told her that Gainda SC No.26/14 Page 12 of 21 Lal took her to the office of a lawyer where she was told not to say anything against Harish and was advised to say whatever she was told to say or otherwise poison would be injected into the body of her father. 'J' further told her that FIR was got registered by them on their own and her signatures were taken forcibly. 'J' told her that she has not been raped by anybody else than accused Harish. She reached police station Inderpuri on the next day and told police officials that Harish had raped her daughter but nobody believed her. She further deposed that after a few days, on receipt of a call from Inspector Aarti Sharma, she alongwith her daughter 'J' reached PS Inderpuri and met Inspector Aarti Sharma. On that day, 'J' pointed out house No.C-95, J J Colony, Inderpuri and house No. C-118, J J Colony, Inderpuri where she had been raped by accused Harish.
22. She further deposed that she had thrown away the mattress which was lying on the bed in their house No.C-95, J J Colony, Inderpuri on which Harish had raped 'J'. She alongwith police officials made search for the mattress but it could not be found. They had also visited the house of Gainda Lal to recover the clothes of 'J' which she was wearing at the time of rape incident and which had been taken by Gainda Lal but the clothes could not be found in the house. She had also accompanied Inspector Aarti Sharma to their native village in Aligarh on 30.05.2013 wherefrom accused Harish was arrested in her presence and was brought to Delhi.
23. In her cross examination, she deposed that her daughter 'J' had apprised her about the incident of attempt to rape SC No.26/14 Page 13 of 21 of the year 2009 on the same evening when it had taken place. She did not narrate the incident to the landlord or other tenants. 'J' had told her that when she raised hue and cry, two ladies had come to the room but she did not know the name of those two ladies. She did not recollect where she and her husband had gone on that day. She admitted that accused Harish was not staying permanently with them in the year 2009. She stated that Harish was staying with his sister Geeta in Patel Nagar but used to visit their house regularly and used to stay with them for many days at a stretch. Accused Harish had been staying at their house for about one or two months before the said incident of attempt to rape. She deposed that on that day, she and her husband had left home at about 11 am and had returned at about 8pm or 9 pm. The accused had remained at their house on that day and had not gone for his job.
24. She further deposed that during the period, her husband was admitted in the hospital, between 2.9.2012 and 10.09.2012, she used to visit the residence i.e. house No.C-95 for a brief period of 15 or 20 minutes and used to leave for hospital alongwith the food. Her daughter 'J' did not tell her about the incident of rape during those visits. Her son used to be with Jaya at their house. 'J' told her that accused had raped her on 3.9.2012 between 4 pm and 5 pm and her brother Dev was not present in the house at that time as he had gone to her parental house for playing. She admitted that Harish did not visit their house after the incident dated 3.9.2012 and they were not on talking terms with Harish thereafter. She denied that Harish did not know that his brother is admitted in the hospital and stated that Harish had SC No.26/14 Page 14 of 21 come to the hospital on 3.9.2012 at about 12 noon. She further stated that when she reached home on 10.9.2012, after discharge of her husband from the hospital, she found her mother in law Rama, sister in law Santosh and brother in law Lala present in the house who told her that 'J' has gone alongwith Gainda Lal. They did not tell her where 'J' and Gainda Lal had gone. She did not apprehend any foul play as Gainda Lal is the grand father of 'J' and their relations with Gainda Lal were very good and she trusted him. She also found that the mattress on their bed was wet as if somebody had vomitted upon the same and hence she threw it out. She asked her in laws as to how this had happened but they did not give any satisfactory reply.
25. She further deposed that she saw her daughter 'J' in the police station on 11.09.2012 at about 8 pm. She had accompanied 'J' to the hospital and remained with her during the whole night and also conveyed her to the court on 12.09.2012 when she was produced before a ld. Magistrate. She stated that she was not permitted to talk to 'J' during that period and hence 'J' did not narrate the incident to her. She further stated that when she had gone to meet 'J' in Nirmal Chhaya, she told her that she was not under threat of her grandfather Gainda Lal and hence did not state the true incidents to the police or to the ld. MM. She admitted that her daughter 'J' had gone to Karnal for doing domestic work and the employers of 'J' had given her Rs. 5000/- in advance. She further denied all the suggestions put to her by the ld. counsel for accused.
26. It is manifest that the prosecutrix, in the FIR, has not SC No.26/14 Page 15 of 21 levelled any allegation against Harish. However, she has deposed in detail about the circumstances in which the FIR was got registered by her grand father Gainda Lal. She has deposed that she had made a call to Gainda Lal telling him that she has been raped by accused Harish but Gainda Lal, his wife, his daughters and another son pressurised her to sign the statement which had been recorded by the Police officials on the dictation of Gainda Lal and also threatened her not to take the name of accused Harish anywhere. She was kept in the house of paternal aunt Kanta in the night and was further asked to take the name of persons in whose house she had done domestic work at Karnal. She has also deposed that she was not permitted to talk to her parents in the police station on 11-12/9/2012 even though her parents had been summoned to the police station and she made statement to the ld. MM also under the tutoring of her grand father Gainda Lal. She has also stated that despite the pressure of her grand father Gainda Lal, she told the ld. MM in her statement that she has been raped by her uncle Harish.
27. It has come in evidence of both the prosecutrix as well as her mother PW3 that the father of the prosecutrix had remained hospitalised from 2.9.2012 to 10.9.2012. PW3 has stated in her cross examination that accused Harish was aware about the hospitalisation of his brother i.e. father of the prosecutrix and he had visited the hospital on 03.09.2012 at about 12 noon. It is thus clear that the accused Harish was in Delhi on 03.09.2012 on which date, he is stated to have raped the prosecutrix at her house. It is also evident from the testimony of PW2 and PW3 that PW2 (prosecutrix) was alone in her house in the afternoon of 3.9.2012.
SC No.26/14 Page 16 of 21She has deposed that she could not narrate the incident to anybody as she was scared of the accused and was under the threats of the accused and she also did not find it appropriate to apprise her mother about the incident as her mother remained in disturbed state of mind on account of illness of her father. The prosecutrix was just 15 years of age in the year 2012 and hence minor as well as immature. Her father was hospitalised and her mother used to spend almost whole day/night in hospital in looking after her husband. Her mother used to come to the house only for a brief period of 15 to 20 minutes and used to leave for the hospital alongwith food.
28. In view of these circumstances, in which the prosecutrix was placed at that time, nothing adverse can be read in her not informing her mother about the incident of rape. She was also under the threat of accused which also would have weighed in her mind compelling her to keep the incident buried in her mind. It is after five or six days that she mustered courage and decided to expose the evil deeds of her uncle and made a call to her grand father Gainda Lal on 9.9.2012.
29. Gainda Lal, his wife, his daughters alongwith another son had reached the house of prosecutrix on 10.09.2012 in the morning before return of her parents from the hospital. She was thus alone in the house at that time. When she complained to these people that she has been raped by the accused Harish, they did not make a call at telephone No.100. They even did not take her straightaway to the Police Station. They did not do anything on 10.09.2012 except taking her to the residence of the lawyer, with SC No.26/14 Page 17 of 21 whom they made extensive consultations. They did not bring her to her house for the night but kept her in the house of her another paternal aunt Kanta, thereby preventing her to meet her parents at home. It appears that nothing was done even during the whole day of 11.09.2012 and call at telephone No.100 had been made late in the evening. The statement Ex. PW2/A of the prosecutrix has been recorded at about midnight on 11.9.2012 as the rukka bears the date and time as 12.9.2012 at 12.25 am. Such inordinate and unexplained delay in reporting the matter to the police only suggests that they were gaining time for cooking up a false story with a view to shield Harish. This lends credence to the version of the prosecutrix that she was raped by Harish and not by anybody at Karnal as is mentioned in the FIR. Had the prosecutrix infact told Ganda Lal on 9.9.2012 or on 10.9.2012 that she had been raped at Karnal, he would not have lost any time in informing either her parents or the police.
30. It has come in the testimony of PW2 and PW3 that PW3 had reached the police station on 11.09.2012 at about 8 pm. She accompanied PW2 to the hospital and also to the court on 12.09.2012 when she was produced before the ld. Magistrate. However, it has also come in their deposition that PW3 was not permitted to talk independently to PW2 during this period and PW2 was under total control of her grand father Gainda Lal and police officials during this whole period till her statement was recorded by the ld. MM. It appears that for this reason, she was not able to narrate the rape incident in detail to the ld. MM also in her statement Ex. PW2/B. However, she told the ld. MM that she had been raped by her uncle Harish when she was just 12 years old.
SC No.26/14 Page 18 of 2131. The evidence on record demonstrates that the prosecutrix had not talked to her mother or her father since the time she was taken from her house by Gainda Lal and till the time her statement was recorded by the ld. MM on 12.09.2012. Therefore, it cannot be said that the prosecutrix had made statement tot he ld. MM on the tutoring of her parents. On the other hand there is strong indication from the evidence on record that she had made the statement to ld. MM on the tutoring of her grand father Gainda Lal but still she managed to tell the ld. MM that she had been raped by her uncle Harish when she was just 12 years old. However, on account of threats issued to her by Gainda Lal, she found it difficult to narrate the rape incident dated 3.9.2009 to the ld. MM.
32. The deposition of PW2 and PW3 shows that PW3 met PW2 for the first time in Nirmal Chhaya on 13.09.2012. In this meeting PW2 told PW3 for the first time that she has been raped by accused Harish and Gainda Lal has got registered a false FIR in a bid to shield his nephew Harish.
33. The manner in which the prosecutrix has mentioned in detail the incident of the year 2009 and the incident dated 03.09.2012, does not give any indication that these incidents had not happened or that she has fabricated these incidents herself or at the instance of anybody else. Her deposition inspires confidence of the court and seems to be credible as well trust worthy. The conduct of Gainda Lal and his daughters as well as son who had accompanied him to the house of the prosecutrix on 10.9.2012 in not making a call at telephone No.100 and not taking the SC No.26/14 Page 19 of 21 prosecutrix to the police station directly on that day, seems to be doubtful and demonstrates that the prosecutrix had told them that she was raped by her uncle Harish but they wanted to shield Harish.
34. The deposition of PW3 fully corroborates the version of PW2 and lends assurances of its truthfulness. There is nothing in their cross examination to suggest that they are not truthful witnesses.
35. Further, if infact the prosecutrix had been raped by her employer at Karnal and not by Harish, I see no reason why would she tell the ld. MM in statement Ex. PW2/B that she was raped by her uncle Harish at the age of 12 and why would she then tell her mother on 13.09.2012 in Nirmal Chhaya that she was raped by Harish. It cannot be believed that she would leave the actual perpetrator of crime and name falsely Harish as her assailant.
36. The submission of ld. counsel for the accused that Harish has been implicated falsely on account of a property dispute between the two families, has no force. No evidence has been lead by the accused to show that any such property dispute existed and if so, regarding which property and what was the point of dispute. In the absence of any such evidence on record, it is difficult to hold that any property dispute existed between the two families.
37. I do not find any reason to disbelieve the testimony of the prosecutrix. The deposition of her mother is in sync with her SC No.26/14 Page 20 of 21 testimony and corroborates her version.
38. Thus I find that the prosecution has been successful in proving the guilt of the accused.
39. The accused is, therefore, convicted of the offence under Section 376/511 IPC regarding incident of the year 2009 and u/s 376 IPC for the incident dated 03.09.2012.
Announced in open (VIRENDER BHAT)
Court on 28.05.2015. Addl. Sessions Judge
(Special Fast Track Court)
Dwarka Courts, New Delhi.
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