Delhi District Court
State vs . 1. Ran Singh on 14 December, 2013
1
FIR No. 455/2003
PS Narela
IN THE COURT OF SH. MAHESH CHANDER GUPTA :
ADDITIONAL SESSIONS JUDGE : SPECIAL FAST TRACK COURT
: NORTHWEST DISTRICT : ROHINI : DELHI
Sessions Case No. : 196A/13
Unique ID No. : 02404R0281752011
State Vs. 1. Ran Singh
S/o Sh. Jage Ram
R/o Village Singhu
PS Alipur, Delhi.
2. Sri Bhagwan
S/o Sh. Prem Raj
R/o Village Hamidpur
Delhi.
FIR No. : 455/2003
Police Station : Narela
Under Sections : 363/376/506/34 IPC
Date of committal to sessions Court : 16/04/2004
Date on which orders were reserved : 02/12/2013
Date on which judgment announced : 14/12/2013
1 of 121
2
FIR No. 455/2003
PS Narela
J U D G M E N T
1. Briefly stated the case of the prosecution as unfolded by the report u/s 173 Cr.P.C. is as under : On 07/12/2003 on receipt of DD No. 38B dated 07/12/2003, PS Alipur, ASI Jagbir Singh with Constable Nehru reached at the Alipur Bus Stand and met the prosecutrix and her mother and on finding that the jurisdiction of offence was not of PS - Alipur but was of PS - Narela, accordingly took them to PS - Narela and handed them over to the officials of PS - Narela, on which DD No. 26A dated 07/12/2003 was recorded at PS Narela and the same was handed over to ASI Ved Prakash and the prosecutrix with W/HC Sarla was sent to M. B. Hospital for the medical examination and W/SI Harjinder Rana was also informed who also reached at the PS - Narela where she (W/SI Harjinder Rana) came to know that prosecutrix has been sent to M. B. Hospital for her medical examination with ASI Ved Parkash and W/HC Sarla. After the medical examination prosecutrix was brought to Police Station and W/HC Sarla produced her with her MLC No. 921/03 before W/SI Harjinder Rana, who inspected the MLC. Thereafter, prosecutrix (name withheld being a case u/s 376 IPC) D/o Late 2 of 121 3 FIR No. 455/2003 PS Narela Sh. Rajinder Singh R/o Bhim Singh Farm, Holambi Khurd, Narela, Delhi made the statement which is to the effect that, she lives at the above address with her family. Her father has since expired. Her mother works as a Chowkidar at the above address. Ran Singh is the friend of the owner of the Farm, Sh. Bhim Singh and has come at the Farm a few times. Ran Singh knows her mother. Her mother had told Ran Singh, to get her (prosecutrix) employed, on which Ran Singh had given assurance to her mother that, very soon after searching some job, he will tell within two four days, and she (her mother) may inquire after telephoning on the mobile (Ran Singh Farm Ke Malik Bhim Singh Ke Dost Hain Tatha Farm Par Kai Baar Aa Chuke Hain. Ran Singh Ki Meri Maa Se Jaan Pehchan Hai. Meri Maa Ne Ran Singh Se Kaha Tha Ki Mujhe Naukri Lagva De, Jis Par Ran Singh Ne Meri Maa Ko Aashwasan Diya Tha Ki Jaldi Hi Kisi Naukri Ki Talash Kar Ke, Do Char Din Mei Bataunga. Tum Mobile Par Phone Kar Ke Pata Kar Lena). She (prosecutrix) three four days ago when talked at the Mobile of Ran Singh from PCO, on which he said, 'the talk has been finalised' and he will get her meet (Maine Teen Char Din Pehle PCO Se Ran Singh Ke Mobile Par Baat Ki To Usne Kaha Ki Baat Pakki Ho Ghai Hai, Mai Tumhe Milva Dunga). On 06/12/2003, in the evening Ran Singh came with his one companion 3 of 121 4 FIR No. 455/2003 PS Narela named Shri Bhagwan S/o Prem Raj R/o Village Hamid Pur and told that the talk for job in Kundli has been finalised, tomorrow morning she (prosecutrix) will be taken to meet that person and she (prosecutrix) to make a call on his (Ran Singh) mobile (Jo Dinank 06/12/2003 Ki Sham Ko Ran Singh Apne Ek Sathi Jiska Naam Shri Bhagwan S/o Prem Raj R/o Gaon Hamid Pur Ke Sath Aaye Aur Kaha Ki Kundli Mein Naukri Ki Baat Pakki Ho Gai Hai. Kal Subah Us Aadmi Se Milvane Le Chalenge. Mere mobile par phone kar lena). Today (07/12/2003) morning at 11:00 a.m. when she (prosecutrix) telephoned from PCO at the mobile No. 56071213 of Ran Singh, on which he (Ran Singh) told her to be ready and he is coming within one hour to take her (Aaj Subah 11:00 Baje Maine PCO Se Ran Singh Ke Mobile No. 56071213 Par Telephone Kiya To Unhone Kaha Ki Tum Tyar Rehna Mai Tumhe Ek Ghante Mein Lene Aa Raha Hoon). At about 12:30 p.m. in the noon time Ran Singh with Shri Bhagwan came in Wagon R Car No. 7414 and after telling her mother, took her (prosecutrix) with them (Samay Qareeb 12:30 Baje Dopahar Ran Singh Apne Sath Shri Bhagwan Ke Sath Wagon R Gaadi No. 7414 Mei Aaye Aur Meri Mummy Ko Bata Kar Mujhe Apne Sath Le Gaye). Firstly, they took her to Moti Nagar and then from there they took and brought her at Bakoli Farm House, where, there 4 of 121 5 FIR No. 455/2003 PS Narela was one built up house and they took her in one room of that house and there was one big bed in the room and after making her sit on it (bed) they both went out (Jo Pehle Ye Log Mujhe Moti Nagar Le Gaye Fir Wahan Se Bakoli Arora Farm House Le Kar Aa Gaye Jahan Ek Makaan Bana Hua Tha Jo Mujhe Makaan Ke Ek Kamre Mei Le Gaye. Kamre Mein Ek Bada Bed Tha Jis Par Mujhe Bitha Kar Dono Bahar Chale Gaye). Thereafter, Shri Bhagwan came inside, who said to her, to make relations with him, when she refused, on which he (Shri Bhagwan) said that, 'in the Farm House they three are there, after killing will wipe her out', and he (Shri Bhagwan) after removing her clothes, forcibly committed galat kaam with her without her consent and against her will (Fir Shri Bhagwan Andar Aaya Jisne Mujhe Kaha Ki Mere Sath Sambandh Bana Maine Mana Kiya To Kaha Ki Farm House Mei Hum Teen Hi Hain. Yahin Maar Ke Thikane Laga Denge. Aur Mere Kapde Utaar Kar Mere Sath Meri Marzi Ke Bina Zabardasti Galat Kaam Kiya). After this Ran Singh came in the room, after giving threat to kill her forcibly committed galat kaam with her without her consent and against her will and thereafter after making her sit in the vehicle left at her home and also told this that, if she disclosed this incident to anyone then they will kill her (Uske Baad Ran Singh Aaya Kamre Mein Aa Kar Mujhe Jaan Se 5 of 121 6 FIR No. 455/2003 PS Narela Maarne Ki Dhamki De Kar Mere Sath Meri Marzi Ke Bina Zabardasti Galat Kaam Kiya Aur Mujhe Gaadi Mei Bitha Kar Ghar Chor Gaye Aur Yeh Bhi Kaha Ki Yadi Yeh Baat Kisi Ko Batai To Tujhe Jaan Se Maar Denge). Firstly, she kept on scaring but then after gathering the courage, she disclosed all about the incident to her mother (Jo Pehle Main Darti Rahi Lekin Fir Maine Himmat Kar Ke Saari Baat Apni Maa Ko Batai). Her mother brought her to Alipur and from there from PCO made a call at 100 number but it was not connected, then they went to the Office Block Alipur of Bhim Singh and from there made a call at 10 number, on which Police came and brought her and her mother at PS - Alipur and after making enquiries left them at PS - Narela. She was got medically examined after taking from Police Station. Her statement has been recorded, which she has read, understood and is correct. On the basis of the statement, from the inspection of MLC No. 921/03 of the prosecutrix, in which Doctor has endorsed, "alleged H/o sexual assault and Hymen ruptured" and from the circumstances, on finding that offences u/s 363, 376, 506/34 IPC appeared to have been committed, the case was got registered. The sealed exhibits of the prosecutrix handed over by the Doctor after her medical examination were taken into Police possession. At the instance of prosecutrix site plan was 6 of 121 7 FIR No. 455/2003 PS Narela prepared. On the pointing out of prosecutrix, after finding sufficient evidence, accused Shri Bhagwan and Ran Singh were arrested. On the pointing out of the prosecutrix, Wagon R Car No. 7414 and the mobile were seized and were taken into Police possession. Both the accused were got medically examined and the sealed exhibits handed over by the Doctor after their medical examination were taken into Police possession. Statements of the witnesses were recorded. The School Leaving Certificate regarding the age of the prosecutrix was obtained. The Bone Age XRay of the prosecutrix was got conducted. The sealed exhibits were sent to CFSL, Kolkata vide RC No. 2/21/04 dated 31/01/2004.
Upon completion of the necessary further investigation challan for the offences u/s 363, 376, 506/34 IPC was prepared against accused Ran Singh and Shri Bhagwan 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 7 of 121 8 FIR No. 455/2003 PS Narela of charge prima facie a case u/s 363/34 IPC, 376(2)(g) IPC and 506(2)/34 IPC was made out against both the accused Ran Singh and Sri Bhagwan. Charge was framed accordingly which was read over and explained to both the accused to which they pleaded not guilty and claimed trial.
4. In support of its case prosecution has produced and examined 14 witnesses. PW1 Prosecutrix, PW2 Meera, PW3 Dr. Monika Senior Resident (Gynae), Maharshi Balmiki Hospital, Pooth Khurd, Delhi, PW4 Dr. Rahul, Specialist, MB Hospital, Delhi, PW5 W/HC Sarla, PW6 ASI Jagbir Singh, PW7 Constable Puran Bahadur, PW8 Constable Lokesh Kumar, PW9 Dr. Ravinder Kumar, Medical Officer, ESI Hospital, Rohini, Delhi, PW10 Constable Ranvir Singh, PW11 HC Bijender Singh, PW12 SI Harjinder Rana (IO), PW13 Sh. Ajay Pal Yadav, LDC Transport Authority Rohini, Delhi and PW14 Retired ASI Satyadev.
PW1 - prosecutrix is the victim, who deposed regarding the incident and proved her statement made to the Police Ex. PW1/A bearing her signature at point 'A', seizure memo of the bedsheet Ex. PW1/B bearing her signature at point 'A', arrest memo of accused Ran Singh Ex. Ex. PW1/C, 8 of 121 9 FIR No. 455/2003 PS Narela arrest memo of accused Sri Bhagwan Ex. PW1/D bearing her signatures at point 'A', personal search memo of accused Sri Bhagwan Ex. PW1/F bearing her signature at point 'A', seizure memo of mobile phone Ex. PW1/E bearing her signature at point 'A', seizure memo of the car no. DL 8CD 7414 Ex. PW1/F bearing her signature at point 'A' (personal search memo of accused Sri Bhagwan also Ex. PW1/F) and also identified and proved her underwear as Ex. P1, car as Ex. P2 and bed sheet as Ex. P3.
PW2 Meera is the mother of the prosecutrix who deposed that she was working as a Chowkidar at Bhim Singh Farm House, Narela, Delhi. She knew the accused Ran Singh present in the Court as he used to come in the farm house of Bhim Singh. She had told Ran Singh as to if he can get her and her daughter a job i.e. to get them employed somewhere. He gave her an assurance that he will get her and her daughter employed and will also inform her as soon as he will arrange a job for her. On 06/12/2003 at about 6:00 p.m. accused Ran Singh and Shri Bhagwan present in the Court came to the farm house and told her that they had arranged a job for her daughter and that her daughter should call them at about 11:00 a.m. on 07/12/2003 on the telephone as to how and where she had to go. On 07/12/2003, her daughter 9 of 121 10 FIR No. 455/2003 PS Narela had given a call to accused Ran Singh and told her (PW2) that accused Ran Singh had told her (PW1 - prosecutrix) that she (prosecutrix) should be ready as he will come to the farm house where they were residing. At about 12:30 in the afternoon accused Ran Singh and Shri Bhagwan came to the farm house and told her (PW2) that they will drop her daughter back home within 10 minutes. Thereafter, her daughter accompanied them. She does not know how she (prosecutrix) was taken by accused persons as she (PW2) was unwell at that time and was inside her house. At about 6:30 p.m. her daughter came home. After preparing food she had asked her daughter about her (prosecutrix) job. First she (prosecutrix) was scared and disturbed and but she (PW2) repeatedly asked her on which she (prosecutrix) started crying and told her (PW2) that accused persons had not get her any job but had committed rape upon her at Arora Farm House. Thereafter, she and her daughter had gone to STD booth and had tried 100 number but when they could not get connected she told her daughter that they will make a phone call at 100 number from the office of Bhim Singh who is the owner of the farm house where they were living. She made a call on 100 number from the office of Bhim Singh and Police advised them to wait at the bus stand. Thereafter, she and her daughter waited at the Bus Stand of Alipur. Police 10 of 121 11 FIR No. 455/2003 PS Narela came and took them to PS - Alipur. Statement of her daughter was recorded. Thereafter, her daughter was taken to Hospital for her medical examination. Police had taken them to Sindhu (Singhu) Border. From there they were taken to PS - Narela where report was lodged. Her daughter was medically examined. Again said her daughter was medically examined when they had reached PS - Narela. Her daughter was also taken to Arora Farm House. She (PW2) had also gone to that farm house. The bed sheet upon which the rape was committed was seized in her (PW2) presence. Thereafter, they were left back home. Her daughter was born on 22/10/1987. Her name was also got regd. in the corporation office and she (PW2) produced the original MCD certificate pertaining to the date of birth of her daughter/prosecutrix (name withheld). According to the same the date of birth of her daughter is 22/10/1987. Copy of the same is mark 2A (Original seen and returned). She had handed over to the IO the School Leaving Certificate of prosecutrix (name withheld) wherein her date of birth is mentioned as 22/10/1987. The same is mark 2B. The same was seized by the IO vide memo Ex. PW2/A. The same bears her signatures at point 'A'.
PW3 Dr. Monika, Senior Resident (Gynae), Maharshi Balmiki 11 of 121 12 FIR No. 455/2003 PS Narela Hospital, Pooth Khurd, Delhi who deposed that on 07/12/2003 she was working in M. B. Hospital, Pooth Khurd as Senior Resident. On that day, the patient/prosecutrix (name withheld) was referred to her for her gynecological examination and for needful opinion regarding the case. On local examination she found no signs of injury, no bleeding upon her. The slight discharge was present and her hymen was found ruptured. No vaginal rugosities which means that patient was not habitual to sexual intercourse. The slides were prepared from her vaginal discharge. Her undergarments and slides were sealed and handed over to HC Sarla. The patient was not bathed or washed after the incident which she also mentioned in the MLC as the same was told to her by the patient herself. She has mentioned all her observation and examination of the patient on the MLC No. 221/03 (Be read as MLC No. 921/03).
During her crossexamination she deposed that the MLC prepared by her of patient/prosecutrix (name withheld) dated 07/12/2003 is Ex. PW3/A bears her signatures at point 'A'.
PW4 Dr. Rahul, Specialist, M. B. Hospital, Delhi who deposed that he has been deputed by Medical Superintendent, M. B. Hospital to prove 12 of 121 13 FIR No. 455/2003 PS Narela the handwriting of Dr. Anil Khari, Radiologist, who had proceeded on leave but he can identify the handwriting and signatures of Dr. Anil Khari as he had seen him writing and signing during the course of his official duties. He proved the report Ex. PW4/A (bone age report of the prosecutrix) which bears the signatures of Dr. Anil Khari at Point 'A'.
PW5 W/HC Sarla who deposed that on 08/12/2003 she was posted at PS - Narela as Head Constable. On that day, she had taken the prosecutrix (name withheld) to M. B. Hospital for her medical examination. Doctor had handed over to her sealed pullindas which she handed over to the IO who had seized the same vide seizure memo Ex. PW5/A which bears her signatures at Point 'A'.
PW6 ASI Jagbir Singh who deposed that on 07/12/2003 he was posted at PS - Alipur. On that day, DD No. 38B regarding a lady standing at BDO Block Bus Stand on whose daughter rape has been committed had been received. He had gone to the spot alongwith Constable Nehru. They met the prosecutrix and her mother Meera who had told him that one Ran Singh alongwith one another man had kidnapped her daughter. As the jurisdiction 13 of 121 14 FIR No. 455/2003 PS Narela of the offence was not of Alipur and was of Narela, he had taken the prosecutrix and her mother to PS Narela and had handed them over to the officials of PS Narela. He proved the DD No. 38B dated 07/12/2003, PS Alipur Ex. PW6/A (initially marked as Mark 6A).
PW7 - Constable Puran Bahadur who deposed that on 08/12/2003 he was posted at PS - Narela. On that day he was present in the investigation of this case. On that day accused Sri Bhagwan was taken by him to hospital for medical examination and after medical examination doctor handed over one slide of semen and blood sample and the pullinda of undergarments duly sealed which he handed over to the IO and the same were seized vide memo Ex. PW7/A which bears his signature at Point 'A' and of the IO at Point 'B'. Accused was arrested vide arrest memo Ex. PW1/D which bears his signature at point 'B', IO at point 'C' and Sri Bhagwan at point 'D'. His personal search was conducted vide memo Ex. PW1/F which bears his signature at Point 'B'. On the same day he alongwith IO and prosecutrix (name withheld) went to the house of Sri Bhagwan and one car no. DL8CD7414 was recovered vide memo Ex. PW1/F which bears his signature at Point 'B'. He proved the seizure memos of the mobile 14 of 121 15 FIR No. 455/2003 PS Narela phone make LG 3GIX, Maruti Car, DL8CD7414 and bed sheet which were seized in his presence vide seizure memos Ex. PW1/E Ex. PW1/F & Ex. PW1/B respectively and identified the mobile phone, car and bed sheet as Ex. P4, Ex. P2 & Ex. P3 respectively.
PW8 Constable Lokesh Kumar who deposed that on 08/12/2003, he was posted at PS - Narela. On that day, he alongwith SI Harjinder Rana joined the investigation in case FIR No. 455/03 under section 363/376/506/24 IPC. On that day he alongwith SI Harjinder Rana reached at Arora Farm House alongwith the prosecutrix and her mother Meera. Where IO prepared the site plan and thereafter they went to Singhu Village. At the instance of the prosecutrix (name withheld) and her mother Meera accused Ran Singh present in the Court was arrested and arrest memo was prepared vide memo Ex. PW1/C which bears his signature at point 'B'. Thereafter they reached Hamidpur Village, where the door of the house of accused Sri Bhagwan was knocked and accused Sri Bhagwan present in the Court opened the door on the instance of the prosecutrix (name withheld) and her mother. Accused Sri Bhagwan was also arrested. Thereafter, he took the accused Ran Singh for his medical examination at M. B. Hospital, Pooth 15 of 121 16 FIR No. 455/2003 PS Narela Khurd, Delhi where he got medically examined the accused Ran Singh. After his medical examination Doctor handed over the pullindas to him and same was handed over to the IO and pullinda was taken into possession vide seizure memo Ex. PW8/A, which bears his signature at point 'A'. His statement was recorded by the IO.
PW9 Dr. Ravinder Kumar, Medical Officer, ESI Hospital, Rohini, Delhi who deposed that on 07/12/2003, he was posted as CMO at M. B. Hospital. On that day, a girl/prosecutrix (name withheld) aged about 15 years was brought before him by Lady HC Sarla, for her medical examination as she was stated to be sexually assaulted. He conducted the medicolegal examination for the Gynaecological opinion. Except portion encircled in red entire MLC was prepared by him and same is Ex. PW3/A which bears his signature at point 'A'.
On 08/12/2003, two persons namely Ran Singh and Sri Bhagwan were produced before him by Constable Lokesh and Constable Puran Bahadur in case FIR No. 455/03 for examination as accused in a case of sexual assault. He examined both the persons and gave his opinion, regarding their capability to perform sexual act. He had seen both the MLC 16 of 121 17 FIR No. 455/2003 PS Narela which are in his hand and same are Ex. PW9/A & Ex. PW9/B which bears his signatures at point 'A' respectively.
PW10 Constable Ranvir Singh who deposed that on 31/01/2004 he was posted at PS - Narela. On the instructions of IO he took 9 pullindas out of which 8 were sealed with the seal of M. B. Hospital, Pooth Khurd, Delhi and one pullinda was sealed with the seal of HR alongwith sample seal and deposited the same at CFSL, Kolkata vide RC No. 2/21/04. After depositing the same at CFSL, Kolkata, he handed over the duplicate (copy of) RC to MHC(M). So long the exhibits remained in his possession, the same was not tampered with.
PW11 HC Bijender Singh is the MHC(M) who deposed that on 08/02/2003 W/SI Harjinder Rana had deposited with him two pullindas of prosecutrix duly sealed with the seal of Casualty of MB Hospital and he deposited the same in the malkhana and made entry to this effect in register no. 19 vide entry number 1293. On the same day she also deposited three pullindas sealed with the seal of Casualty MB Hospital of accused Sri Bhagwan and he deposited the same in the malkhana and made entry to this 17 of 121 18 FIR No. 455/2003 PS Narela effect in the Register No. 19 vide entry no. 1293. On the same day she also deposited three pullindas sealed with the seal of Casualty MB Hospital of accused Ran Singh and he deposited the same in the malkhana and made entry to this effect in the Register No. 19 vide entry no. 1293. On the same day she had also deposited with him one mobile phone LG 3G1X. He deposited the same in the Malkhana and made entry to this effect in the Register No. 19 vide entry no. 1292. On 31/01/2004 he sent 9 exhibits alongwith three sample seals to CFSL, Kolkata through Constable Ranbir vide RC No. 2/21/04 alongwith FSL Form and he made entry to this effect in column no. 5 & 6 opposite to the entry no. 1293. Constable Ranbir after depositing the same at CFSL, Kolkata had handed over receipt of exhibits. On 16/12/2001 a mobile phone was released to Anil Sehrawat on the order of the Court and he made entry to this effect in column no. 7 & 8 in register no.
19. The car bearing no. DL8CD7414 was released to Mahipal Rana on the order of the Court and he made entry to this effect in col. no. 7 & 8 opposite to entry no. 1293. He proved the photocopies of relevant entries of register no. 19 collectively Ex. PW11/A and copy of the RC Book Ex. PW11/B. PW12 SI Harjinder Rana, is the Investigating Officer (IO), who 18 of 121 19 FIR No. 455/2003 PS Narela deposed that on 07/12/2003, she was posted at Sub. Div. Narela as SI. On the night intervening 0708/12/2003, on receipt of an information regarding rape she reached PS - Narela. She came to know that prosecutrix (name withheld) had been taken to the M. B. Hospital, Pooth Khurd by ASI Ved Parkash and W/HC Sarla for her medical examination. After some time prosecutrix (name withheld) came back after medical examination at PS - Narela and she was handed over MCL of prosecutrix (name withheld) Ex. PW3/A and W/HC Sarla also handed over two sealed parcels alongwith sample seal having seal of M. B. Hospital, Pooth Khurd which she seized vide memo Ex. PW5/A, bearing her signature at point 'B'. She recorded her statement Ex. PW1/A and made endorsement on the same which is Ex. PW12/A and got the formal FIR registered, copy of which is Ex. PW12/B. Thereafter, she alongwith the prosecutrix and Constables namely Puran Bahadur and Lokesh reached the place of occurrence i.e. Arora Farm House, Bakhtavar Pur, Bakoli Road, and there on the pointing out of the prosecutrix she prepared a site plan Ex. PW12/C. The mother of prosecutrix namely Meera was also with them at that time. The prosecutrix also pointed out towards the room inside the farm house and there she pointed out towards a bed lying there and stated that she was raped there. A colourful printed bed 19 of 121 20 FIR No. 455/2003 PS Narela sheet was found laid on the said bed. She converted that bed sheet into parcel with the help of white cloth, sealed the same with the seal of 'HR' and seized the same vide seizure memo Ex. PW1/B bearing her signature at point 'C'. Thereafter, they all went to V&PO Singhu in the area of PS - Alipur at the house of accused Ran Singh and there on pointing out of the prosecutrix, accused Ran Singh present in Court was arrested vide memo Ex. PW1/C and his personal search was conducted vide memo Ex. PW12/D bearing her signature at point 'A'. Accused Ran Singh produced a mobile phone make 'LG' which he stated to have used to call prosecutrix. The said mobile phone was seized by him vide memo Ex. PW12/E bearing her signature at point 'B'. Thereafter, another accused involved in this case namely Sri Bhagwan present in the Court was arrested from his house at village Hamid Pur on the pointing out of the prosecutrix, vide memo Ex. PW1/D bearing her signature at point 'C' and his personal search was also conducted vide memo Ex. PW1/F bearing her signature at point 'C'. Accused Sri Bhagwan was found in possession of a car No. DL8CD7414 which he stated to have used in commission of crime while taking the prosecutrix with them. The said car was also seized vide memo Ex. PW1/F bearing her signature at point 'C'. Both the accused persons were got medically examined vide MLC Ex.
20 of 121 21 FIR No. 455/2003 PS Narela PW9/A and Ex. PW9/B respectively and after their medical examination Doctor handed over the respective parcels, sealed with the seal of 'MB' Hospital, Pooth Khurd alongwith sample seals and the same was seized by her vide memo Ex. PW7/A and Ex. PW8/A respectively. Both the accused persons made disclosure statements Ex. PW12/F and Ex. PW12/G respectively bearing her signature at point 'A'. She got conducted the bony age examination of prosecutrix for determining her age and obtained report which is Ex. PW4/A. She also obtained School Leaving Certificate of the prosecutrix from mother of prosecutrix and seized the same vide memo Ex. PW2/A, the certificate is Ex. PW12/H. She sent the parcels of this case to CFSL, Kolkata through Constable Ranbir vide RC No. 2/21/04. After completion of investigation challan was filed. CFSL Report was obtained later on which is Ex. PZ (Colly.). She identified the case property i.e. bed sheet as Ex. P3, Mobile Phone as Ex. P4 and Maruti Wagon R Car No. DL8CD7414 as Ex. P2.
PW13 Ajay Pal Yadav, LDC Transport Authority, Rohini, Delhi who deposed that he has brought the summoned record. As per record Maruti Wagon R bearing registration No. DL8CD7414 is in the name of 21 of 121 22 FIR No. 455/2003 PS Narela accused Sri Bhagwan (as on) 04/07/2000 and accused had taken NOC on 07/04/2008 regarding transfer of registration to Siwan, Bihar and proved the photocopy of RC book as Ex. PW13/A (OSR).
PW14 Retired ASI Satyadev is the Duty Officer who deposed that on 08/12/2003 he was posted at PS - Narela as ASI. On that day he was performing duties as Duty Officer from 12:00 night to 8:00 a.m. On that day, he received a rukka which was handed over to him by W/SI Harjinder Rana. On the basis of the rukka he registered the case FIR No. 455/03, u/s 363/376/506/34 IPC which is in his handwriting. He has brought the original FIR and the carbon copy of the same is Ex. PW12/B which bears his signature at point 'A', he made his endorsement on the rukka which is Ex. PW14/A bears his signature at point 'A' (OSR). After registration of the case, he handed over the carbon copy of FIR and original rukka to Constable Atam Dev.
The testimonies of the prosecution witnesses shall be dealt with in detail during the course of appreciation of evidence.
22 of 121 23 FIR No. 455/2003 PS Narela
5. Statements of accused Ran Singh & Sri Bhagwan were recorded u/s 313 Cr.P.C. wherein they pleaded innocence and false implication. They opted not to lead any defence evidence.
6. Learned Counsel for the accused submitted that the testimony of prosecutrix is is highly artificial and full of material contradictions and that the same cannot be accepted and the conviction cannot be based thereupon. In her crossexamination she has stated that it was her first sexual intercourse of her life. However, the word "first" is not typed in her statement due to mistake, but reading of her crossexamination in conjunction with the last question put by Mr. R. K. Naseem, Advocate in her crossexamination it is clear that the word "first" has not been mentioned due to typographical mistake. The last portion of crossexamination by the Learned Counsel Sh. R. K. Naseem is as follows : "It is also incorrect to suggest that it was not my first physical connection with any men or that I was accustom to physical bodily involvement".
The prosecutrix has stated in her crossexamination that I did not know accused Sri Bhagwan prior to the incident. She stated that the name of 23 of 121 24 FIR No. 455/2003 PS Narela Sri Bhagwan became known to her after she had asked his name from Ran Singh. She has stated that she did not ask the name of parent of Sri Bhagwan from Ran Singh. She admits that she had not talked with Sri Bhagwan nor she had asked the name of father of Sri Bhagwan or his address. After having set and concerned from her this point, when she was further asked, as to whether she gave any such statement to the Police i.e. Ex. PW1/A, wherein she named the father of accused Sri Bhagwan, she had to say 'no' to it, but her statement was otherwise i.e. in the statement she had given the name of father of Shri Bhagwan. Her statement on this aspect was put to her and she was duly confronted with the same, wherein father's name of Sri Bhagwan was given by her. If we look at the examinationinchief of the prosecutrix about the arrest of Sri Bhagwan, wherein she says that both of the accused including Sri Bhagwan was brought to Police Station by Police and were arrested there. Her such statement is against the version of Police. The Police version is that accused Shri Bhagwan was arrested from his Village Hamidpur, Delhi at the pointing out of prosecutrix. Even otherwise when she was not knowing the father's name of Sri Bhagwan as well as his address, then how Sri Bhagwan was arrested and brought to the Police Station. So, the doubt starts from the very beginning about believing her 24 of 121 25 FIR No. 455/2003 PS Narela version in regard to arrest of Sri Bhagwan.
Learned Counsel for the accused further submitted that she, with a view to persuade the Court to believe that she knew the name of village of accused Shri Bhagwan, further stated that the name of his village was told to her by coaccused Ran Singh. This too is palpably false statement in as much as when she was confronted on this score from the statement recorded by the Police i.e., Ex. PW1/A, it was found that such a fact is not recorded in her statement and so, she was duly confronted with that statement. She has further stated in her crossexamination that she was taken by the accused to Moti Nagar, when she was asked, "did she know where Moti Nagar was", to which she said "no", but with a view to make the Court believe that she came to know the name of Moti Nagar from accused Ran Singh, her lie was detected when she was confronted with the statement Ex. PW1/A, where no such mention of her knowing the name of Moti Nagar, from Ran Singh is found. Lots of questions have been asked in crossexamination from her about her going to Moti Nagar, staying in Moti Nagar, but to all those questions, she gave evasive reply, which only and clearly point out that the story of Moti Nagar is a concocted story. Some of the answers to the questions about Moti Nagar are that she says that I cannot tell the 25 of 121 26 FIR No. 455/2003 PS Narela approximate distance from my farm house to Moti Nagar. I cannot tell approximate time taken to cover up such distance, she stated that she remained sit in the car alone for about 1½ hours when the accused left her alone in the car and went somewhere and the car was not even locked. She states that I had told this fact of sitting in the car to the Police, which fact was found to be wrong as there was no such mention in her statement Ex. PW1/A, to which she was duly confronted. She says that I did not object as to why I was brought to Moti Nagar and not taken to Kundli for getting job. She further states that I was taken to farm house at Bakoli (the place where the alleged rape had been committed) by the accused on the pretext that the employer, who will give her job, will meet her at the farm house. She has said this, with a view to make the Court believe that how accused persons persuaded her to take from home to farm house of Bakoli. This statement of her as stated above is also a complete lie in as much as, although she says I had stated so to the Police as the same does not find mention in Ex. PW1/A, from which she was duly confronted. She accepts that the nature of job was not explained to me by the accused while I was taken away. She also said that even she did not ask the same from accused persons, here we should pause for some time and visualize the reality. It is not unthinkable that a 26 of 121 27 FIR No. 455/2003 PS Narela person is wanting a job and other person is promising him for a job and the person, wanting the job, would not ask what kind of job he/she will be given or atleast there was no such talk of kind of the job between the two. It is simply unbelievable that about the nature of job none of them will talk at all. The story of job appears to be a totally concocted story. If we look the things from angle of correct perspective the nature of job should have been talked at the very moment, when the prosecutrix or her mother had asked Ran Singh for a job or at least at the time when she was taken by the accused Ran Singh and coaccused for providing her a job. So the story of job from the very beginning till end appears to be a concocted story, with a view to prove first false case against the accused.
Learned Counsel for the accused further submitted that during the crossexamination she further stated that she does not know as to how much time it took from Moti Nagar to Farm House at Bakoli. Neither she was able to mention the approximate distance or the time took to cover up such distance. She says that my mother is Chowkidar at the farm house of Bhim Singh for the last 3½ years. Her mother is a woman of 41 years as her mother has given her age as 41 years while being examined as PW2 and if we compute her age at the time of her employment as Chowkidar, it come to 27 of 121 28 FIR No. 455/2003 PS Narela about 37 years of age. Is it possible that anybody will keep a woman of 37 years of age, having small children, particularly as a Chowkidar at the farm house. Even people don't keep female Chowkidar at their houses situated in densely populated locality. It is common knowledge that Chowkidar at the farm house are not only male person but only those persons are kept as Chowkidar who are not only stout and fit but have some weapon with them.
Learned Counsel for the accused further submitted that this story of her mother being Chowkidar appears to be false. Moreso, when there is absolutely no evidence on record to substantiate the said story i.e. neither Bhim Singh has been examined on this point nor any other evidence has been adduced by the prosecution on this point.
Learned Counsel for the accused further submitted that thereafter the prosecutrix says that her father had come with them and lived there at farm house of about 3/4 months and then disappeared and that no report was lodged. But she has stated in her statement before the Police, which she accepts, that her father is dead, now in Court she says that her father is alive and has stated to the Police that he has died. It is unbelievable that a person, 28 of 121 29 FIR No. 455/2003 PS Narela whose father is missing, while saying that he is dead. The prosecutrix was also asked very direct question during crossexamination, which was very risky also. The question was, whether you objected or not, when the rape was committed upon you and whether you said or not why you are i.e. the accused committing rape upon me, particularly when you i.e. accused had brought her to the farm, been asked from the accused, as to what happened in regard to the job, but no such question was asked. This shows that the story of job is false and concocted one. She states in her crossexamination that after reaching house she first took her meals, which means no untoward incident much less the mischief of rape happened with her. She also accepts that except her mother nobody else is living in the farm house and she also accepted that they had no acquaintance in Delhi. She further accepts in her crossexamination that they have been going from their farm house at Holambi to Alipur very often for making telephone calls. How is it possible, if they are having no acquaintance in Delhi, this is a very big question, as to whether the prosecutrix is telling truth or hiding something from the Court. She had admitted that she was not taken to telephone booth from where she made telephone call to the Police. This shows that no such telephone call was ever made and the story is not correct. She admits that at the office of 29 of 121 30 FIR No. 455/2003 PS Narela Bhim Singh; Bhim Singh was present and when there is absolutely no evidence on record to substantiate the said story i.e. neither Bhim Singh has been examined on this point nor any other evidence has been adduced by the prosecution on this point.
Learned Counsel for the accused further submitted that thereafter the prosecutrix says that her father had come with them and lived there and thereafter, despite that no report was lodged, she had stated in her statement before the Police, which she accepts, that her father, now she says that her father is alive and has stated to the Police that for us he had died. It is unbelievable that a person whose father is missing is saying him to be dead. In such a situation as mentioned above Bhim Singh should have been an independent witness. The absence from the part of prosecution to make Bhim Singh as prosecution witness, casts serious doubt on the prosecution story. She i.e. prosecutrix has stated in her crossexamination about other members of her family i.e. her brother 1314 years of age, having some knowledge about this incident, her Naani who is having complete knowledge about the incident but none of them were made witnesses by the prosecution, which again casts doubt about the prosecution story. She admits that Police 30 of 121 31 FIR No. 455/2003 PS Narela contacted us at a Bus Stand at Alipur, from there they were taken to Police Station Alipur. She accepts in her crossexamination that they remained in PS Alipur for a long time and that enquiries were made from them by the Police at PS Alipur. She said that their statements were not recorded by Police of Alipur. She accepts that even no enquiries were made from her at PS - Narela, where both of them were sent by the Police of PS - Alipur on the ground of jurisdiction. She has admitted in her crossexamination that once she is examined by the lady doctor she was taken by the lady doctor in her own room and that she was alone in that room. She accepts that lady doctor asked her as to what had happened. She accepts that I did not disclose to the lady doctor the incident of rape or that who had committed the same. A suggestion was put to her that you did not disclose the incident of rape or did not disclose the name of the persons, to the doctor as no rape was committed upon you. There are several authorities in which it has been held that if the prosecutrix fails to narrate the incident to lady doctor particularly when both of them are alone and fails to name the culprits, the only logical conclusion which comes out in such circumstances that no rape was committed and that the story of rape is false. So, judging this case from the above angle, it is crystal clear that neither any rape was committed upon the 31 of 121 32 FIR No. 455/2003 PS Narela prosecutrix nor the accused persons are in any way involved in any case of rape. A suggestion was put to the prosecutrix that on account of some dispute regarding settlement of money, you have falsely involved the accused persons and that the accused persons did not indulge in any criminal act and that they have been falsely involved.
Learned Counsel for the accused further submitted that PW2 - Smt. Meera, the mother of the prosecutrix as already stated above, has stated her age to be 41 years and she was examined on 04/05/2005 and if we compute her age from the date, when she was kept as a chowkidar it has come to 37 years. Nobody will keep the women of such an age at the farm house. Neither any proof to this effect has been adduced by the prosecution. In these circumstances, the fact that she was chowkidar at Farm House of Bhim Singh is highly unbelievable and the correct facts about her residence have not been brought on record, for the reasons best known to the prosecution. Her mother in examinationinchief has reiterated more or less same story, which the prosecutrix stated in her examinationinchief. However, her mother made another additional statement that she not only asked for job of her daughter from Ran Singh but also for her own job. She stated that when both the accused persons came on 07/12/2003 at about 32 of 121 33 FIR No. 455/2003 PS Narela 12:30 noon, to take the prosecutrix for a job, they said that they will drop the prosecutrix within 10 minute. From this statement the story of job stands falsified because if somebody taken another person for job that too for such a far of distance, it is not possible for him/her to bring the said person back within 10 minutes. Again as stated above, there is nothing, in whole of the examinationinchief of this witness that there was any talk between accused person and the mother of the prosecutrix or the prosecutrix about the nature of the job. The absence of all these things clearly shows that there was no story of job. It has been developed only with a view to falsely involve the accused persons in this case. She has also stated that her daughter had come at about 6:30 p.m. She nowhere stated in her examinationinchief that she asked the accused persons, as to why such a long time has taken. She also stated that first of all when my daughter had come at 6:30 p.m., I prepared food for her and then I asked my daughter about the job and that on this question my daughter got scared and started crying and told me that accused persons had not got any job but have committed rape upon her at Arora Farm House. Thereafter, she repeated the same story, which has been narrated by the prosecutrix. She also admits that she had gone to Arora Farm House from where the bed sheet upon which alleged rape was committed was 33 of 121 34 FIR No. 455/2003 PS Narela seized by Police in their presence. She has also given the date of birth of her daughter as 22/10/1987, so her age was about 16 years on the day of incident. She was crossexamined at length by the Counsel for the accused Sri Bhagwan. She has admitted that her husband has deserted them after 3/4 months of stay at the farm house of Bhim Singh. She stated that she cannot give any reason for such desertion. A suggestion was put to her that her husband left on account of illicit activities of mother of the prosecutrix, by the accused persons, was negated by her. She was asked many questions, which were of a sort of improvement from her statement under section 161 Cr.P.C. She was asked the question whether in her statement under section 161 Cr.P.C., did she tell that she had asked Ran Singh for job, to which she said yes, but there was no such mention about it in her statement Ex. PW2/DA, for which she was duly confronted. She also states that Ran Singh had assured me job. This was also an improvement and false statement and she was confronted in regard to it, with her statement Ex. PW2/DA, where it was not so recorded. Similarly, there are several other questions put regarding the job, which are mere improvement and which are duly confronted to the statement Ex. PW2/DA. From these improvements and contradictions, it is crystal clear that the story of job is totally false. She has 34 of 121 35 FIR No. 455/2003 PS Narela stated in her crossexamination that she is living in a Kothi in the Farm House and that Bhim Singh never entered this Kothi. She also states that there is no other any construction except Kothi of the Farm House. From this statement it appears that as if Kothi was made only for her and not for the owner of the Farm House. All the statements of the mother of the prosecutrix are highly unbelievable. First of all she cannot be kept as chowkidar at the farm house, which is a lonely place and owner of farm house, who has built kothi over there for his visits and residence will not even enter that and will allow a chowkidar to use it. She has also stated that on 06/12/2003 at 6:00 p.m. accused Ran Singh and Sri Bhagwan came to farm house and told me that they had arranged a job for my daughter and my daughter have to accompany them on 07/12/2003. All the telephonic calls, as mentioned by her in her statement was the improvement and false and in contradiction to the statement u/s 161 Cr.P.C. Ex. PW2/DA, where visits and talks are not so recorded. Similarly she was confronted with so many other portions of her statement, some of which are very important. She was confronted with her statement about the accused dropping her daughter within 10 minutes. It is not so recorded in her statement by the Police. Similarly she was asked whether she asked about the job, from her statement 35 of 121 36 FIR No. 455/2003 PS Narela Ex. PW2/DA from which she has been duly confronted. Similarly, she was asked whether she asked about the nature of job from the accused persons. It as not stated in her statement. She was duly confronted with her statement Ex. PW2/DA on this aspect too that "did your daughter used the word 'Balatkar' and did she tell the same in your presence to the Police". There is also no mention of the said word and she has been duly confronted with her statement Ex. PW2/DA in this regard. Similarly, she was also confronted to the effect that "did you tell in your statement to the Police that your daughter told that rape was committed upon her at Arora Farm House". There was no such mention of it in her statement, from which she was duly confronted. So, there are so many other improvements made by her which has been mentioned in her crossexamination and the net result of all such improvements are that the story told by her is totally false. She has stated in her crossexamination that we had gone to the Office of Ran Singh, which is not the case and version of Police. She states that Sri Bhagwan had come to the Police, when he was arrested. She categorically stated that we did not go to the village of Sri Bhagwan at Hamidpur, which is also against the Police version. She states that she never knew the name of Sri Bhagwan. She was confronted with her statement before Police on this point. She states that she 36 of 121 37 FIR No. 455/2003 PS Narela had told everything to Bhim Singh but Bhim Singh has not been made as a witness in the proceedings. Whatever story she has stated in her cross examination and examinationinchief, the same is totally against the story put forward by the prosecution. She has admitted that at PS - Alipur, the statement of prosecutrix was recorded by some Mr. Maan a Police official. This is against the Police version. In any case that statement has not seen the light of day. So, judging the statement from each and every angle, is leading to only one logical conclusion that her statement is full of lies, cannot be believed in any case and that the charge of rape is wrong against the accused persons after judging the statement of both prosecutrix as well as her mother.
Learned Counsel for the accused further submitted that from her statement Dr. Monika, it is crystal clear that the prosecutrix was accustomed to frequent intercourse. The prosecutrix had denied that she had any intercourse earlier, so she cannot be believed in view of statement of Dr. Monika PW3. In her examinationinchief Dr. Monika, it has been wrongly typed that patient was not habitual in intercourse, but the same has been duly corrected by the witness during her crossexamination that absence of Rougosities in Vaginal track of prosecutrix shows that she was used to 37 of 121 38 FIR No. 455/2003 PS Narela frequent intercourse.
Learned Counsel for the accused further submitted that the evidence of all other witnesses, is of formal nature. So, from the evidence of these witnesses, it is crystal clear that no case of rape is established against the accused persons.
Learned Counsel for the accused further submitted that the CFSL Report also proved and point out to the fact that no rape is committed in this case. There is no semen or blood found on underwear of the accused as well as no semen or blood was found on the bed sheet recovered in the case. There is direct authority of Hon'ble Supreme Court that when there is no semen or blood found on bed sheet then a presumption should be raised that no rape was committed by the accused on the prosecutrix.
Learned Counsel for accused referred to the cases and are reported as 'Narender Kumar Vs. State (NCT of Delhi)', 2012 VI AD (S.C.) 112, 'Lala Ram & Anr. Vs. State of Madhya Pradesh', (2009) 1 SCC (Cri) 17, 'Pappu Vs. State of Delhi', 2010(1) Crimes 580 (Del.), 'Raju & Ors. Vs. State of Madhya Pradesh', (2009) 3 SCC (Cri) 751, 'Radhu Vs. State of Madhya Pradesh', (2008) 2 SCC (Cri) 207, 'Sudhanshu Sekhar Sahoo Vs. State of 38 of 121 39 FIR No. 455/2003 PS Narela Orissa', 2003 [1] JCC 154, 'Vimal Suresh Kamble Vs. Chaluverapinake Apal S.P.', 2003 [1] JCC 164, 'Naravan @ Naran Vs. State of Rajasthan', 2007(2) JCC 1202, 'Satish Kumar Vs. State', Crl. A. No. 38/1992, decided on 09/08/1995 (DHC), 'Kishan Pal Vs. State', Crl. A. No. 81/1997, decided on 26/03/2004 (DHC), 'Johnson Vs. State', Crl. A. No. 775/2011, decided on 29/02/2012 (DHC) and 'Bibhishan Vs. State of Maharashtra', 2008 CRI. L. J.
721. Learned Counsel for accused prayed for the acquittal of accused Sri Bhagwan and Ran Singh from all the charges levelled against them, in view of detailed submissions made above, to meet the ends of justice.
7. 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.
8. I have heard Sh. S. C. Sroai, Learned Addl. PP for the State and 39 of 121 40 FIR No. 455/2003 PS Narela Sh. Ramesh Gupta, Learned Senior Advocate for accused Ran Singh and Sh. B. S. Sharma, Learned Counsel for accused Sri Bhagwan and have also carefully perused the entire record and the cases referred to.
9. The charges for the offences punishable u/s 363/34 IPC, 376(2)
(g) IPC, 506(2)/34 IPC against both the accused Ran Singh and Sri Bhagwan are that on 07/12/2003 at 12:30 p.m. both the accused in furtherance of their common intention kidnapped the prosecutrix (name withheld) aged about 15 years from the lawful guardianship of her parents without their consent and that on the abovesaid date and time both the accused in furtherance of their common intention took prosecutrix (name withheld), to Arora Farm House at Village Bakoli in a Wagon R Car No. 7414 and committed rape upon her and that on the abovesaid date, time and place both the accused in furtherance of their common intention had criminally intimidated the prosecutrix (name withheld) with a threat to kill her in case she disclose the incident of rape to anyone.
10. 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 40 of 121 41 FIR No. 455/2003 PS Narela 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
11. PW1 - Prosecutrix in her examinationinchief recorded on 03/01/2005 has deposed that her date of birth is 22/10/1987.
During the crossexamination on behalf of accused Ran Singh PW1 - prosecutrix has deposed that : "I had told my age to the Doctor on 20/01/2004 as 17 years. It is wrong to suggest that I was more than 18 years of age on the day of incident".
PW2 - Meera, mother of the prosecutrix in her examinationin chief recorded on 04/05/2005 has deposed that her daughter was born on 22/10/1987. Her name was also got registered in the Corporation Office. During her examinationinchief recorded on 27/07/2005 she produced the original MCD Certificate of her daughter i.e. prosecutrix showing her date of birth 22/10/1987 which is Mark 2A (original seen and returned). She also marked the School Leaving Certificate of her daughter - prosecutrix showing her date of birth 22/10/1987 Mark 2B (also Ex. PW12/H in the 41 of 121 42 FIR No. 455/2003 PS Narela evidence of PW12 SI Harjinder Rana) and proved its seizure memo Ex. PW2/A bearing her signature at point 'A'.
There is nothing in the crossexamination of PW2 - Meera so as to impeach her creditworthiness. Nor any evidence to the contrary has been produced or proved on the record on behalf of the accused.
In the circumstances, it stands established on the record that the date of birth of PW1 - prosecutrix is 22/10/1987.
PW4 - Dr. Rahul has proved the bone age report of the prosecutrix prepared by Dr. Anil Khari, Radiologist Ex. PW4/A signed by Dr. Anil Khari at point 'A'.
The perusal of bone age report Ex. PW4/A indicates that the Radiological findings suggest bone age is above sixteen years but less than eighteen years.
In case 'Jarnail Singh Vs. State of Haryana', 2013 VII AD (S.C.) 313 in para 20, the Hon'ble Supreme Court has held that, it would be just and appropriate to apply Rule 12 of Juvenile Justice (Care and Protection of Children) Rules, 2007 to determine the age of the prosecutrix.
42 of 121 43 FIR No. 455/2003 PS Narela In the instant case, since the date of birth certificate from the School (other than a play school) first attended by PW1 - prosecutrix as provided under Rule 12 (3)(a)(ii) is available therefore the same is adopted as the highest rated first available basis, in terms of the scheme of options under Rule 12 (3) of Juvenile Justice (Care and Protection of Children) Rules, 2007.
As the date of the alleged incident is 07/12/2003 and the date of birth of the prosecutrix is 22/10/1987, on simple arithmetical calculation, the age of the prosecutrix comes to 16 years, 01 month and 15 days as on the date of alleged incident on 07/12/2003.
In view of above and in the circumstances, it stands established on the record that PW1 - Prosecutrix was aged 16 years 01 month and 15 days as on the date of alleged incident on 07/12/2003.
It is pertinent to reproduce para 20 of Jarnail Singh's case (Supra) of the Hon'ble Supreme Court which reads as under : 43 of 121 44 FIR No. 455/2003 PS Narela "On the issue of determination of age of a minor, one only needs to make a reference to Rule 12 of the Juvenile Justice (Care and Protection of Children) Rules, 2007 (hereinafter referred to as the 2007 Rules). The aforestated 2007 Rules have been framed under Section 68(1) of the Juvenile Justice (Care and Protection of Children) Rules, 2000. Rule 12 referred to hereinabove reads as under : "12. Procedure to be followed in determination of Age.? (1) In every conflict with law, the Court or the Board or as the case may be the Committee referred to in rule 19 of these rules shall determine the age of such juvenile or child or a juvenile in conflict with law within a period of thirty days from the date of making of the application for that purpose. (2) The Court or the Board or as the case may be the Committee shall decide the juvenility or otherwise of the juvenile or the child or as the case may be the juvenile in conflict with law, prima facie on the basis of physical appearance or documents, if available, and send him to the observation home or in jail.
(3) In every case concerning a child or juvenile in conflict with law, the age determination inquiry shall be conducted by the Court or the Board or, as the case may be, the Committee by seeking evidence by obtaining
(a) (i) the matriculation or equivalent certificates, if available; and in the absence whereof;
(ii) the date of birth certificate from the school (other than a play school) first attended; and in the absence whereof;
(iii) the birth certificate given by a corporation or a municipal authority or a panchayat;
(b) and only in the absence of either (i), (ii) or (iii) of clause (a) above, the medical opinion will be sought from a duly constituted Medical Board,which will declare the age of the juvenile or child. In case exact assessment of the age cannot be done, the Court or the Board or, as the case may be, the 44 of 121 45 FIR No. 455/2003 PS Narela Committee, for the reasons to be recorded by them, may, if considered necessary, give benefit to the child or juvenile by considering his/her age on lower side within the margin of one year.
and, while passing orders in such case shall, after taking into consideration such evidence as may be available, or the medical opinion, as the case may be, record a finding in respect of his age and either of the evidence specified in any of the clauses (a) (i), (ii), (iii) or in the absence whereof, clause (b) shall be the conclusive proof of the age as regards such child or the juvenile in conflict with law.
(4) If the age of a juvenile or child or the juvenile in conflict with law is found to be below 18 years on the date of offence, on the basis of any of the conclusive proof specified in subrule (3), the Court or the Board or as the case may be the Committee shall in writing pass an order stating the age and declaring the status of juvenility or otherwise, for the purpose of the Act and these rules a a copy of the order shall be given to such juvenile or the person concerned.
(5) Save and except where, further inquiry or otherwise is required, inter alia, in terms of section 7A, section 64 of the Act and these rules, no further inquiry shall be conducted by the Court or the Board after examining and obtaining the certificate or any other documentary proof referred to in sub rule (3) of this rule.
(6) The provisions contained in this rule shall also apply to those disposed off cases, where the status of juvenility has not been determined in accordance with the provisions contained in subrule (3) and the Act, requiring dispensation of the sentence under the Act for passing appropriate 45 of 121 46 FIR No. 455/2003 PS Narela order in the interest of the juvenile in conflict with law."
Even though Rule 12 is strictly applicable only to determine the age of a child in conflict with law, we are of the view that the aforesaid statutory provision should be the basis for determining age, even for a child who is a victim of crime. For, in our view, there is hardly any difference in so far as the issue of minority is concerned, between a child in conflict with law, and a child who is a victim of crime. Therefore, in out considered opinion, it would be just and appropriate to apply Rule 12 of the 2007 Rules, to determine the age of the prosecutrix VWPW6. The manner of determining age conclusively, has been expressed in subrule (3) of Rule 12 extracted above. Under the aforesaid provision, the age of a child is ascertained, by adopting the first available basis, out of a number of options postulated in Rule 12(3). If, in the scheme of options under Rule 12(3), an option is expressed in a preceding clause, it has overriding effect over an option expressed in a subsequent clause. The highest rated option available, would conclusively determine the age of a minor. In the scheme of Rule 12(3), matriculation (or equivalent) certificate of the concerned child, is the highest rated option. In case, the said certificate is available, no other evidence can be relied upon. Only in the absence of the said certificate, Rule 12(3), envisages consideration of the date of birth entered, in the school first attended by the child. In case such an entry of date is available, the date of birth depicted therein is liable to be treated as final and conclusive, and no other material is to be relied upon. Only in the absence of such entry, Rule 12(3) postulates reliance on a birth certificate issued by a corporation or a municipal authority or a panchayat. Yet again, if such a certificate is available, then no other material whatsoever is to be taken into consideration, for determining the age of the child concerned, as the said certificate would conclusively determine the age of the child. It is only in 46 of 121 47 FIR No. 455/2003 PS Narela the absence of any of the aforesaid, that Rule 12(3) postulates the determination of age of the concerned child, on the basis of medical opinion."
It is also to be noticed that the Hon'ble Supreme Court in case State of Maharashtra Vs. Gajanan Hemant Janardhan Wankdhede (2008) 8 SCC 38 has held as under : "13. .....On the basis of the evidence of the Headmaster and the original school leaving certificate and the school register which were produced the High Court came to abrupt conclusion that normally for various reasons the guardians to understate the age of their children at the time of admission in the school. There was no material or basis for coming to this conclusion. The High Court in the absence of any evidence to the contrary should not have come to hold that the date of birth of the prosecutrix was not established and the school leaving certificate and the school register are not conclusive.
14. Interestingly, no question was put to the victim in cross examination about the date of birth. The High Court also noted that no document was produced at the time of admission and a horoscope was purportedly produced. There is no requirement that at the time of admission documents are to be produced as regards the age of the student....."
MEDICAL EVIDENCE OF THE PROSECUTRIX 47 of 121 48 FIR No. 455/2003 PS Narela
12. PW9 - Dr. Ravinder Kumar in his examinationinchief has deposed that on 07/12/2003 he conducted the medicolegal examination of the prosecutrix and deposed that except portion encircled in red, entire MLC was prepared by him which is Ex. PW3/A signed by him at point 'A'.
PW3 - Dr. Monika, Senior Resident (Gynae), Maharishi Balmiki Hospital, Pooth Khurd, Delhi in her examinationinchief has deposed which is reproduced and reads as under : "On 07/12/2003, I was working in the Maharishi Balmiki Hospital, Pooth Khurd as Senior Resident. On that day, the patient (prosecutrix name withheld) D/o Rajinder was referred to me for her gynaecological examination and for needful opinion regarding the case. On local examination I found no signs of injury, no bleeding upon her. The slight discharge was present and her hymen was found ruptured. No vaginal rugosities which means that patient was not habitual to sexual intercourse. The slides were prepared from her vaginal discharge. Her undergarments and slides were sealed and handed over to HC Sarla. The patient was not bathed or washed after the incident which I also mentioned in the MLC as the same was told to me by the patient herself. I have mentioned all my observation and examination of the patient on the MLC No. 221/03" (Be read as MLC No. 921/03).
During her crossexamination conducted on behalf of accused Ran Singh, which was also adopted by accused Sri Bhagwan, PW3 - Dr. Monika has deposed which is reproduced and reads as under : 48 of 121 49 FIR No. 455/2003 PS Narela The MLC prepared by me of prosecutrix (name withheld) dated 07/12/2003 is Ex. PW3/A and bears my signatures at point 'A'. It is correct that during examination of the prosecutrix (name withheld) I found the rugosities in her vaginal track were absent. I agree with the observation in Medical Jurisprudence and Toxicology by Dr. H. W. V. Cox and by Dr. Barnal Knight VIth edition at page 431 where the author has opined "with very frequent intercourse or child birth the rugae will be lost. Rugae and rugosities are one and the same thing".
There is nothing in the crossexamination of PW3 - Dr. Monika so as to impeach her creditworthiness. Her testimony is clear, cogent, convincing and inspires confidence. She has withstood the test of cross examination and her testimony is consistent throughout.
During her crossexamination PW3 - Dr. Monika nowhere has been specifically suggested or put to her by Learned Defence Counsel that the absence of vaginal rugosities in the prosecutrix was due to her habituation to sexual intercourse despite the fact PW3 Dr. Monika had specifically and categorically deposed "No vaginal rugosities which means that patient was not habitual to sexual intercourse". Simply reference to observation in medical jurisprudence and toxicology by Dr. H. W. V. Cox and by Dr. Barnal Knight VIth edition at page 431 during the crossexamination of PW3 - Dr. Monika 49 of 121 50 FIR No. 455/2003 PS Narela and of her agreeing thereto does not breach or falsify the consistent and cogent testimony of PW3 - Dr. Monika.
As regards nonfinding of any signs of injury on the body part of the prosecutrix is concerned, the absence of signs of any injury does not falsify the case of the prosecution which is otherwise proved on record by clear, cogent and convincing evidence.
Emission of semen or leaving of seminal stains or producing of any injury to the genitals is not necessary to constitute the offence of rape. Complete penetration or partial penetration of penis within the labia majora or the vulva or pudenda without emission of semen or even an attempt at penetration is quite possible to commit legally the offence of rape without producing any injury to the genitals or leaving any seminal stains. (Vide Modi in Medical jurisprudence and Toxicology (Twenty First Edition) at page 369 & Parikh's Textbook of Medical jurisprudence and Toxicology).
Explanation appended to Section - 375 IPC clearly provides penetration is sufficient to constitute the sexual intercourse necessary to 50 of 121 51 FIR No. 455/2003 PS Narela the offence of rape.
It is also to be noticed that in case, 'Ranjit Hazarika Vs. State of Assam', (1998) 8 SCC 635, the Hon'ble Supreme Court observed that non rupture of hymen or absence of injury on victim's private parts does not belie the testimony of the prosecutrix.
In case 'O. M. Baby (Dead) by LRs Vs. State of Kerala', 2012 VI AD (S.C.) 521, the Hon'ble Supreme Court held that absence of injuries or mark of violence on the person of the prosecutrix may not be decisive, particularly, in a situation where the victim did not offer any resistance on account of threat or fear meted out to her.
In view of above and in the circumstances, the gynaecological examination of PW1 - prosecutrix as was conducted by PW3 - Dr. Monika vide MLC Ex. PW3/A encircled portion and the medical examination of the prosecutrix vide MLC Ex. PW3/A excluding the encircled red portion stands proved on the record.
13. Learned Counsel for accused submitted that in her cross 51 of 121 52 FIR No. 455/2003 PS Narela examination PW1 - prosecutrix has stated that it was her first sexual intercourse of her life. However, the word "first" is not typed in her statement due to mistake, but reading of her crossexamination in conjunction with the last question put by Mr. R. K. Naseem, Advocate in her crossexamination it is clear that the word "first" has not been mentioned due to typographical mistake. It is submitted that the last portion of cross examination by the Learned Counsel Sh. R. K. Naseem is as follows : "It is also incorrect to suggest that it was not my first physical connection with any men or that I was accustom to physical bodily involvement".
Learned Counsel further submitted that from the statement of Dr. Monika, it is crystal clear that the prosecutrix was accustomed to frequent intercourse. The prosecutrix had denied that she had any intercourse earlier, so she cannot be believed in view of statement of Dr. Monika PW3. In the examinationinchief of Dr. Monika, it has been wrongly typed that patient was not habitual in intercourse, but the same has been duly corrected by the witness during her crossexamination that absence of Rougosities in Vaginal track of prosecutrix shows that she was used to frequent intercourse.
I have carefully perused and analysed the evidence on record.
52 of 121 53 FIR No. 455/2003 PS Narela The testimony of Dr. Monika, SR (Gynae) has been reproduced, discussed and analysed hereinabove.
It is not made clear by Learned Counsel for accused as to what benefit they intend to reap from the said plea so raised. Do they intend to convey that PW1 - prosecutrix is a girl/woman of "easy virtues" or a girl/woman of "loose moral character".
If it is so, it is not permissible as every woman has a right to protect her dignity and cannot be subjected to rape only for that reason.
In case Narender Kumar Vs. State (NCT of Delhi (2012) 7 SCC 171, the Hon'ble Supreme Court has held as under : "Even in cases where there is some material to show that the victim was habitual to sexual intercourse, no inference of the victim being a woman of "easy virtues" or a woman of "loose moral character" can be drawn. Such a woman has a right to protect her dignity and cannot be subjected to rape only for that reason. She has a right to refuse to submit herself to sexual intercourse to anyone and everyone because she is not a vulnerable object or prey for being sexually assaulted by anyone and everyone. Merely because a woman is of easy virtue, her evidence cannot be discarded on that ground alone rather it is to be cautiously appreciated and 53 of 121 54 FIR No. 455/2003 PS Narela the Court is required to adjudicate whether the accused committed rape on the victim on the occasion complained of. In view of the provisions of Sections 53 and 54 of the Evidence Act, 1872, unless the character of the prosecutrix itself is in issue, her character is not a relevant factor to be taken into consideration at all.
In 'State Vs. Ramdev Singh', AIR 2004 SC 1290, the Hon'ble Supreme Court observed that even if the victim in a given case has been promiscuous in her sexual behaviour earlier, she has a right to refuse to submit herself to sexual intercourse to anyone and everyone because has is not a vulnerable object or prey for being sexually assaulted by anyone or everyone.
In the circumstances, there is no substance in the plea so raised by Learned Counsel for the accused.
VIRILITY OF THE ACCUSED RAN SINGH & SRI BHAGWAN
14. PW9 - Dr. Ravinder Kumar in his examinationinchief has deposed that on 08/12/2003, he examined Ran Singh and Sri Bhagwan and gave opinion regarding their capability to perform sexual act vide MLCs Ex.
54 of 121 55 FIR No. 455/2003 PS Narela PW9/A and Ex. PW9/B respectively signed by him at points 'A'.
The perusal of the MLCs Ex. PW9/A and Ex. PW9/B indicates that in the said MLCs PW9 Dr. Ravinder Kumar has opined that "There is nothing to suggest that person is not able to perform sexual act."
In the circumstances, it stands established on the record that both the accused Ran Singh and Sri Bhagwan were capable to perform sexual act.
BIOLOGICAL AND SEROLOGICAL EVIDENCE
15. PW12 - SI Harjinder Rana, during the course of her examination inchief, tendered in evidence the CFSL Report Ex. PZ (Colly.).
The biological report Ex. PZ (Colly.) reads as under : Mode in which the parcel was found to be packed on receipt and description of seal The parcel(s) consisted of two sealed cloth cover glass bottles, one sealed cloth cover slide and six sealed cloth packets, which were sealed with seal impression corresponding with the seal impression forwarded.
55 of 121 56 FIR No. 455/2003 PS Narela They contained the following exhibits.
Copy of label(s) attached to articles containing parcel labeled as per copy forwarded in substance.
Sr. Exhibit No. Description of Exhibit(s) Result(s) No. 1 Exhibit - 1 : One sealed pullinda Positive for blood Underwear containing an underwear and semen tests marked here as Exhibit : 1 2 Exhibit - 2 : One sealed pullinda Positive for Slides of Vaginal containing two glass slides semen tests Swab of vaginal swab marked here as Exhibit : 2 3 Exhibit - 3 : One sealed pullinda Negative for Underwear containing an underwear blood and semen marked here as Exhibit : 3 tests 4 Exhibit - 4 : One sealed pullinda Positive for blood Blood Sample on containing blood sample on tests cotton cotton marked here as Exhibit : 4 5 Exhibit - 5 : One sealed pullinda Positive for Semen Sample containing semen sample in semen tests a glass vial marked here as Exhibit : 5 56 of 121 57 FIR No. 455/2003 PS Narela 6 Exhibit - 6 : One sealed pullinda Negative for Underwear containing an underwear blood and semen marked here as Exhibit : 6 tests 7 Exhibit - 7 : One sealed pullinda Positive for blood Blood Sample on containing blood sample in tests gauze gauze marked here as Exhibit : 7 8 Exhibit - 8 : One sealed pullinda Positive for Semen Sample containing semen sample in semen tests a glass vial marked here as Exhibit : 8 9 Exhibit - 9 : One sealed pullinda Negative for Bed Sheet containing a bed sheet blood and semen marked here as Exhibit : 9 tests Blood Test : (i) Phenolphthalein (ii) Takayama Test Semen Test : (i) Visual & U.V. Examination (ii) Acid Phosphatase
(iii) Microscopic Examination N.B. : 1. Serology Report of above positive exhibits is enclosed herewith.
2. Remnants of the exhibits will be returned separately. The serological report Ex. PZ (Colly.) reads as under: The cuttings/pieces/parts of the exhibits mentioned below, were subjected to serological analysis. The origin of blood and semen was 57 of 121 58 FIR No. 455/2003 PS Narela determined by using Gel Diffusion and the grouping of blood by Absorption Elution technique and the grouping of semen by Absorption Inhibition technique. The cuttings of the exhibits were exhausted during the examination. The results of the examinations are given below :
Sl. Description Stain/Fluid/Material Test Results for Remarks No. of Exhibit(s) present on exhibit Origin Group positive for 1 Exhibit - 1 : Blood & Semen Human Group Test Underwear Inconclusive cutting 2 Exhibit - 2 : Semen Human Group Test Vaginal swab Inconclusive slide 3 Exhibit - 4 : Blood Human 'A' Blood Sample in gauze 4 Exhibit - 5 : Semen Human Group Test Semen Inconclusive Sample 5 Exhibit - 7 : Blood Human 'B' Blood Sample is gauze 6 Exhibit - 8 : Semen Human Group Test Semen Inconclusive Sample
58 of 121 59 FIR No. 455/2003 PS Narela On careful perusal and analysis of the biological and serological evidence on record, it clearly shows that blood and semen was detected on exhibit '1' (underwear of PW1 - Prosecutrix). Semen was detected on exhibit '2' (vaginal swab of PW1 - prosecutrix). Blood was detected on exhibit '4' (blood sample in gauze of accused Sri Bhagwan). Semen was detected on exhibit '5' (semen sample of accused Sri Bhagwan). Blood was detected on exhibit '7' (blood sample in gauze of accused Ran Singh). Semen was detected on exhibit '8' (semen sample of accused Ran Singh) and the same were of HUMAN origin.
On a conjoint reading of the medical evidence, the gynaecological examination on MLC Ex. PW3/A of the prosecutrix conducted by PW3 - Dr. Monika, SR, Gynae, together with the MLC of accused Ran Singh Ex. PW9/A and that of MLC of accused Sri Bhagwan Ex. PW9/B. In the light of the biological and serological evidence detailed hereinabove it clearly indicates the taking place of sexual intercourse activity.
In the circumstances, it stands clearly established on the record that sexual intercourse activity has taken place in the instant 59 of 121 60 FIR No. 455/2003 PS Narela case.
As per the biological report Ex. PZ (Colly.) with regard to the description of the articles/exhibits contained in the parcels, it is noticed that, Parcel No. 1 & 2 belong to PW1 - prosecutrix which were seized vide seizure memo Ex. PW5/A, Parcel Nos. 3, 4 & 5 belong to accused Sri Bhagwan which were seized vide seizure memo Ex. PW7/A, Parcel Nos. 6, 7 and 8 belong to accused Ran Singh which were seized vide seizure memo Ex. PW8/A and Parcel No. 9 containing a bed sheet recovered from the place of incident was seized vide seizure memo Ex. PW1/B. As per the biological report Ex. PZ (Colly.) prosecution has discharged its initial burden of proving the presence of Human semen on exhibit '1' (underwear of PW1 - Prosecutrix seized vide seizure memo Ex. PW5/A) and on exhibit '2' (vaginal swab of PW1 - prosecutrix seized vide seizure memo Ex. PW5/A). Accused were under an obligation to explain how and under what circumstances, the human semen came to be present on exhibit '1' (underwear of PW1 - Prosecutrix) and on 60 of 121 61 FIR No. 455/2003 PS Narela exhibit '2' (vaginal swab of PW1 - prosecutrix).
The absence of such an explanation both in the section 313 Cr.P.C. statements of the accused and their omission to lead any evidence in this regard and their complete denial becomes an additional link in the prosecution case.
In the circumstances, there is no substance in the plea raised by the Learned Counsel for accused that the CFSL Report also proved and point out to the fact that no rape was committed in this case. It appears that such plea has been raised by the accused overlooking the stark reality which has been proved by the CFSL Report Ex. PZ (Colly.), in order to save their skins from the clutches of the law.
16. Now let the testimonies of PW1 - Prosecutrix and PW2 - Meera, mother of the prosecutrix be perused perused and analyzed.
PW1 - Prosecutrix in her examinationinchief has deposed, which is reproduced and reads as under : "My father left our house about 3/4 years back and we do not know his present whereabouts. My mother is working as a chowkidar at the farm house of Bhim Singh. Accused Ran Singh, present in the Court (The 61 of 121 62 FIR No. 455/2003 PS Narela witness correctly identified the accused) was the friend of accused Bhim Singh. Accused Ran Singh used to visit the farm house of Bhim Singh where I was staying alongwith my mother and therefore my mother as well as myself knew accused Ran Singh, present in the Court. My mother had requested accused Ran Singh to get me a job and he had given an assurance to my mother that he will tried to find a job for me. He also gave his mobile phone number to my mother and asked her to call him on his mobile phone and find out about the job. The mobile number of Ran Singh was 56071213.
About 3/4 days prior to 06/12/2003, I had called the accused Ran Singh on his mobile phone number 56071213. Accused Ran Singh told me that he had got a job for me at village 'Kundali'. He told me that on the next day he will take me to village 'Kundali' to get a job.
On 06/12/2003, accused Ran Singh present in the Court and accused Sri Bhagwan, present in the Court (correctly identified) came to the farm house. Both of them ask me to call them at the abovesaid phone number at 11:00 a.m. on the next day. I called accused Ran Singh on his mobile number at 11:00 a.m. next day and he told me that he will pick me in one hour and he take me to village 'Kundali'. He asked to remain ready to accompany him.
At about 12:30 in the afternoon, both the accused persons present in the Court came to (in) Wagon R No. 7414. Thereafter, both the accused persons brought me to Moti Nagar at Delhi and thereafter took me to village Bakoli at Arora Farm House. It was a big house. Both the accused persons took me in a room in that house which had a big bed. They asked me to sit there and left the room. After some time accused Sri Bhagwan came inside the room and asked me to maintain relations with him. I refused. He threatened me that since only three of us present in that farm house I will be kill (killed).
Thereafter, accused Sri Bhagwan did galat kaam with me against 62 of 121 63 FIR No. 455/2003 PS Narela my will and consent after removing my clothes. Thereafter, accused Ran Singh present in the Court came inside the room and also threatened to kill me and thereafter he also did galat kaam with me against my will and consent.
Thereafter, both the accused persons left me at my house in the same vehicle. They also threatened to kill in case I disclose the incident of rape to anyone. After about one hour, I disclose the incident of rape to my mother. My mother went to Alipur to call the Police on 100 number however, we could not get contacted the Police. Thereafter, my mother took me to the office of Bhim Singh where we again called the Police at 100 number. Police came at the Alipur bus stand where we were standing and they took us to PS - Alipur. After enquiries they left us at PS - Narela. After enquiries I was taken to the hospital. After my medical examination I was again brought back to the PS where my statement was recorded. My statement to the Police is Ex. PW1/A which bears my signatures at point 'A'."
PW1 - Prosecutrix further deposed that her underwear was taken by Doctor at the Hospital and she identified and proved her black colour underwear taken by Doctor as Ex. P1, seizure memo of bed sheet Ex. PW1/B which bears her signature at point 'A' and proved the Bed sheet as Ex. P3 and proved the arrest memo of accused Ran Singh Ex. PW1/C which bears her signature at point 'A'. She also proved the seizure memo of car bearing no. DL8CD7414 Ex. PW1/F which bears her signature at point 'A' and car as Ex. P2. Prosecutrix also proved arrest memo of accused Sri Bhagwan Ex.
63 of 121 64 FIR No. 455/2003 PS Narela PW1/D which bears her signature at point 'A', personal search memo of accused Sri Bhagwan Ex. PW1/F which bears her signature at point 'A' (seizure memo of car is also Ex. PW1/F), seizure memo of mobile phone (LG 3GIX) Ex. PW1/E which bears her signature at point 'A'. She further deposed that she was not studying in the school at the time of alleged incident. She has studied upto 5th class thereafter she discontinued studies when she was promoted to 6th Class. Her date of birth is 22.10.1987 and she identified both the accused persons present in the Court.
From the aforesaid narration of PW1 - prosecutrix, it is clear that her father left their house about about 3/4 years back and they do not know his present whereabouts. Her mother was working as a chowkidar at the farm house of Bhim Singh. Accused Ran Singh was the friend of accused Bhim Singh (Be read as Bhim Singh, not as accused Bhim Singh). Accused Ran Singh used to visit the farm house of Bhim Singh where she was staying alongwith her mother and therefore her mother as well as she knew accused Ran Singh. Her mother had requested accused Ran Singh to got her (prosecutrix) a job and he had given an assurance to her mother that he will tried (try) to find a job for her (prosecutrix). He also gave his mobile phone number to her mother and asked her to call him on his mobile phone 64 of 121 65 FIR No. 455/2003 PS Narela no. 56071213. About 3/4 days prior to 06.12.2003 she (prosecutrix) had called the accused Ran Singh on his mobile phone number 56071213. Accused Ran Singh told her (prosecutrix) that he had got a job for her at village 'Kundali'. He told her that on the next day he will take her (prosecutrix) to village 'Kundali' to get a job. On 06.12.2003 accused Ran Singh alongwith accused Sri Bhagwan came to the farm house and both of them asked her (prosecutrix) to call them at the abovesaid phone number at 11:00 a.m. on next day. She (prosecutrix) called accused Ran Singh on his mobile number at 11:00 a.m. next day and he told her that he will pick her in one hour and he (will) take her to village 'Kundali'. He asked to remain ready to accompany him. At about 12:30 p.m. both the accused persons, present in the Court came in a Wagon R Car No. 7414. Thereafter, both the accused persons brought her (prosecutrix) to Moti Nagar at Delhi and thereafter, took her to village Bakoli at Arora Farm House. It was a big house. Both the accused persons took her in a room in that house which had a big bed and they asked her to sit there and left the room. After sometime accused Sri Bhagwan came inside the room and asked her to maintain relations with him. She refused. He threatened her that since only three of them present in that farm house she will be killed. Thereafter, accused Sri 65 of 121 66 FIR No. 455/2003 PS Narela Bhagwan did galat kaam with her against her will and consent after removing her clothes. Thereafter accused Ran Singh, present in the Court came inside the room and also threatened to kill her and thereafter he also did galat kaam with her against her will and consent. Thereafter, both the accused persons left her at her house in the same vehicle. They also threatened to kill in case she disclosed the incident of rape to anyone. After about one hour she disclosed the incident of rape to her mother. Her mother went to Alipur to call the police on number 100, however, they could not get contacted the Police. Thereafter, her mother took her to the office of Bhim Singh where they again called the Police at number 100. Police came at the Alipur Bus Stand where they were standing and took them to PS Alipur. After enquiries they (Police) left them at PS Narela. After inquiry she was taken to the hospital. After her medical examination she was again brought back to the Police Station where her statement was recorded. She proved her statement made to the police Ex. PW1/A which bears her signatures at Point 'A'.
During her crossexamination, conducted on behalf of accused Ran Singh, PW1 - Prosecutrix negated the suggestions that the accused did not have any talks with her regarding her employment nor the accused had 66 of 121 67 FIR No. 455/2003 PS Narela assured her any employment nor they had taken her anywhere for her employment or that she was dealing in flesh trade and in that connection met the accused at the Holambi Farm. She also negated the suggestion that on settlement of money regarding the flesh trade they had a dispute, the accused had not indulged with her and had gone away or that on previous occasions also with other people, she had gone to Bakoli Farm House and thus knew the place and had also named the said place for this reason.
PW1 - Prosecutrix negated the suggestion in her cross examination, conducted on behalf of accused Sri Bhagwan that she had not disclosed the names of accused person to the Doctor as rape was not committed upon her.
Inspite of incisive crossexamination of PW1 Prosecutrix, nothing material has been brought out so as to impeach her creditworthiness. In the witness box she has withstood the test of crossexamination and her testimony is consistent throughout. The testimony of PW1 - prosecutrix on perusal and analysis is found to be clear, natural, cogent, convincing, trustworthy and inspiring confidence. The version of this witness on the core spectrum of crime has remained intact. There is nothing in her statement to 67 of 121 68 FIR No. 455/2003 PS Narela suggest that she had any animus against the accused persons to falsely implicate them in the case.
The testimony of PW1 - prosecutrix is also found to be corroborated by the medical evidence as well as biological and serological evidence as discussed hereinbefore.
The testimony of PW1 - prosecutrix is also found to be in consonance with her statement Ex. PW1/A made to the Police.
The testimony of PW1 - Prosecutrix is also found to be corroborated by the testimony of PW2 - Meera, her mother, to whom prosecutrix disclosed the facts relating to the crime shortly after the incident, at the first available opportunity, being relevant under section 6 and 8 of the Indian Evidence Act, 1872.
PW2 - Meera, mother of the prosecutrix in her examinationin chief dated 04/05/2005 has deposed which is reproduced and reads as under : "I am working as a Chowkidar as (at) Bhim Singh Farm House, Narela, Delhi. I know the accused Ran Singh present in the Court as he used to come in the farm house of Bhim Singh. I had told Ran Singh as to if he can get me and my daughter a job i.e. To get us employed somewhere. He gave me an assurance that he will get me and my daughter employed and will also inform me as soon as he will arrange a job for me. On 06/12/2003 68 of 121 69 FIR No. 455/2003 PS Narela at about 6:00 p.m. accused Ran Singh and Shri Bhagwan present in the Court came to the farm house and told me that they had arranged a job for my daughter and that my daughter should call them at about 11:00 a.m. on 07/12/2003 on the telephone as to how and where she had to go. On 07/12/2003, my daughter had given a call to accused Ran Singh and told me that accused Ran Singh had told her that she should be ready as he will come to the farm house where we were residing. At about 12:30 in the afternoon accused Ran Singh and Shri Bhagwan came to the farm house and told me that they will drop my daughter back home within 10 minutes. Thereafter, my daughter accompanied them. I do not know how she was taken by accused persons as I was unwell at that time and was inside my house. At about 6:30 p.m. my daughter came home. After preparing food I had asked my daughter about her job. First she was scared and disturbed and but I repeatedly asked her she started crying and told me that accused persons had not get her any job but had committed rape upon her at Arora Farm House. Thereafter, me and my daughter had gone to STD booth and had tried 100 number but when we could not get connected I told my daughter that we will make a phone call at 100 number from the office of Bhim Singh who is the owner of the farm house where we were living. I made a call on 100 number from the office of Bhim Singh and Police advised us to wait at the bus stand. Thereafter, me and my daughter waited at the Bus Stand of Alipur. Police came and took us to PS - Alipur. Statement of my daughter was recorded. Thereafter, my daughter was taken to Hospital for her medical examination. Police had taken us to Sindhu (Singhu) Border. From there we were taken to PS - Narela where report was lodged. My daughter was medically examined. Again said my daughter was medically examined when we had reached PS - Narela. My daughter was also taken to Arora Farm House. I had also gone to that farm house. The bed sheet upon which the rape was committed was seized in my presence. Thereafter, we were left back home.
69 of 121 70 FIR No. 455/2003 PS Narela My daughter was born on 22/10/1987. Her name was also got regd. in the corporation office. I can produce the same on the next date."
PW2 - Meera in her examinationinchief dated 27/07/2005 has deposed which is reproduced and reads as under : "Today I have brought the original MCD certificate pertaining to the date of birth of my daughter/prosecutrix (name withheld). According to the same the date of birth of my daughter is 22/10/1987. Copy of the same is mark 2A (Original seen and returned). I hand (had) handed over to the IO the School Leaving Certificate to the IO of prosecutrix (name withheld) wherein her date of birth is mentioned as 22/10/1987. The same is mark 2B. The same was seized by the IO vide memo Ex. PW2/A. The same bears my signatures at point 'A'."
From the aforesaid narration of PW2 - Meera, it is clear that she was working as a Chowkidar at Bhim Singh Farm House, Narela, Delhi. She knew the accused Ran Singh present in the Court as he used to come in the farm house of Bhim Singh. She had told Ran Singh as to if he can get her and her daughter a job i.e. to get them employed somewhere. He gave her an assurance that he will get her and her daughter employed and will also inform her as soon as he will arrange a job for her. On 06/12/2003 at about 6:00 p.m. accused Ran Singh and Shri Bhagwan present in the Court came to the farm house and told her that they had arranged a job for her daughter and 70 of 121 71 FIR No. 455/2003 PS Narela that her daughter should call them at about 11:00 a.m. on 07/12/2003 on the telephone as to how and where she had to go. On 07/12/2003, her daughter had given a call to accused Ran Singh and told her (PW2) that accused Ran Singh had told her (PW1 - prosecutrix) that she (prosecutrix) should be ready as he will come to the farm house where they were residing. At about 12:30 in the afternoon accused Ran Singh and Shri Bhagwan came to the farm house and told her (PW2) that they will drop her daughter back home within 10 minutes. Thereafter, her daughter accompanied them. She does not know how she (prosecutrix) was taken by accused persons as she (PW2) was unwell at that time and was inside her house. At about 6:30 p.m. her daughter came home. After preparing food she had asked her daughter about her (prosecutrix) job. First she (prosecutrix) was scared and disturbed and but she (PW2) repeatedly asked her on which she (prosecutrix) started crying and told her (PW2) that accused persons had not get her any job but had committed rape upon her at Arora Farm House. Thereafter, she and her daughter had gone to STD booth and had tried 100 number but when they could not get connected she told her daughter that they will make a phone call at 100 number from the office of Bhim Singh who is the owner of the farm house where they were living. She made a call on 100 number from the 71 of 121 72 FIR No. 455/2003 PS Narela office of Bhim Singh and Police advised them to wait at the bus stand. Thereafter, she and her daughter waited at the Bus Stand of Alipur. Police came and took them to PS - Alipur. Statement of her daughter was recorded. Thereafter, her daughter was taken to Hospital for her medical examination. Police had taken them to Sindhu (Singhu) Border. From there they were taken to PS - Narela where report was lodged. Her daughter was medically examined. Again said her daughter was medically examined when they had reached PS - Narela. Her daughter was also taken to Arora Farm House. She (PW2) had also gone to that farm house. The bed sheet upon which the rape was committed was seized in her (PW2) presence. Thereafter, they were left back home. Her daughter was born on 22/10/1987. Her name was also got regd. in the corporation office and she (PW2) produced the original MCD certificate pertaining to the date of birth of her daughter/prosecutrix (name withheld). According to the same the date of birth of her daughter is 22/10/1987. Copy of the same is mark 2A (Original seen and returned). She had handed over to the IO the School Leaving Certificate of prosecutrix (name withheld) wherein her date of birth is mentioned as 22/10/1987. The same is mark 2B. The same was seized by the IO vide memo Ex. PW2/A. The same bears her signatures at point 'A'.
72 of 121 73 FIR No. 455/2003 PS Narela Nothing material could be elicited during the incisive cross examination of PW2 - Meera so as to impeach her creditworthiness. During her crossexamination, conducted on behalf of both the accused persons, PW2 - Meera negated the suggestions that no chit having phone number of accused Ran Singh was handed over to the Police by her or that she is deposing falsely on this point or that no incident of rape took place with her daughter.
On careful perusal and analysis and by applying the discerning scrutiny standard [Ref. Raju @ Balachandran & Ors. Vs. State of Tamil Nadu 2012 XII AD (S.C.)1], the testimony of PW2 - Meera is found to be natural, clear, cogent, reliable, inspiring confidence and having a ring of truth. There is nothing in her statement to suggest that she had any animus against the accused persons to falsely implicate them in the case.
17. While analysing the testimonies of PW1 - Prosecutrix and PW2 - Meera, her mother as discussed hereinabove, inspite of incisive cross examination, nothing has come out in the statements of PW1 - Prosecutrix 73 of 121 74 FIR No. 455/2003 PS Narela and PW2 - Meera which may throw even a slightest doubt on the prosecution version of the incident. Though, the suggestions by defence to PW1 prosecutrix that the accused did not have any talks with her regarding her employment nor the accused had assured her any employment nor they had taken her anywhere for her employment or that she was dealing in flesh trade and in that connection met the accused at the Holambi Farm or that on settlement of money regarding the flesh trade they had a dispute, the accused had not indulged with her and had gone away or that on previous occasions also with other people, she had gone to Bakoli Farm House and thus knew the place and had also named the said place for this reason or that she had not disclosed the names of accused person to the Doctor as rape was not committed upon her and the suggestions to PW2 - Meera that no chit having phone number of accused Ran Singh was handed over to the Police by her or that she is deposing falsely on this point or that no incident of rape took place with her daughter, were put, which were negated by the said PWs but the same have not at all being made probable much established by any cogent evidence. Further there is not an iota of evidence or even a suggestion that the accused have been falsely implicated because of animosity.
74 of 121 75 FIR No. 455/2003 PS Narela At the cost of repetition, from the suggestions put to PW1 - prosecutrix detailed hereinabove, by the accused, it is to be noticed that a futile attempt has been made by the accused to save their skin from the clutches of law by floating every possible theory. The theories floated by the accused are : The Theory that, "on settlement of money regarding the flesh trade they (PW1 - prosecutrix & accused) had a dispute, the accused had not indulged with her (PW1 - prosecutrix) and had gone away"
The Theory that, "she (PW1 - prosecutrix) was dealing in flesh trade and in that connection met the accused at the Holambi Farm"
AND The Theory that, "on previous occasions also with other people she (PW1 - prosecutrix) had gone to Bakoli Farm House and thus knew the place and had also named the said place for this reason"
On careful perusal and analysis of the entire evidence on record, the said theories so propounded by the accused are not only self
75 of 121 76 FIR No. 455/2003 PS Narela contradictory but have not at all being made probable much established by any cogent evidence therefore, falls flat to the ground.
It is also to be noticed, the said theories, so propounded by the accused were not put/suggested to PW1 - Meera, mother of the prosecutrix, during the course of her crossexamination.
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 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 76 of 121 77 FIR No. 455/2003 PS Narela and not a medical condition. Rape is a legal term and not a diagnosis to be made by the medical officer treating the victim. The only statement that can be made by the medical officer is that there is evidence of recent sexual activity. Whether the rape has occurred or not is a legal conclusion, not a medical one."
In Parikh's Textbook of Medical jurisprudence and Toxicology, the following passage is found : "Sexual intercourse : In law, this term is held to mean the slightest degree of penetration of the vulva by the penis with or without emission of semen. It is therefore quite possible to commit legally the offence of rape without producing any injury to the genitals or leaving any seminal stains."
In Encyclopedia of Crime and Justice (Vol. 4) at page 1356, it is stated : ".....even slight penetration is sufficient and emission is unnecessary."
On analysing the testimony of PW1 - Prosecutrix in the light of medical, biological and serological evidence, MLC of prosecutrix Ex. PW3/A, gynaecological examination of the prosecutrix at the encircled portion red on the MLC Ex. PW3/A together with the MLC of accused Ran 77 of 121 78 FIR No. 455/2003 PS Narela Singh Ex. PW9/A and that of MLC of accused Sri Bhagwan Ex. PW9/B, as discussed hereinbefore, the act of sexual intercourse activity either by way of complete penetration of penis with emission of semen or by partial penetration of penis with emission of semen within labia majora or the vulva or pudenda stands proved.
In view of above and in the circumstances, it stands clearly established on the record of the performance of the act of sexual intercourse by accused Ran Singh and Sri Bhagwan with PW1 - Prosecutrix without her consent and against her will.
19. Learned Counsel for the accused submitted that PW1 - prosecutrix has admitted in her crossexamination that once she is examined by the lady doctor she was taken by the lady doctor in her own room and that she was alone in that room. She accepts that lady doctor asked her as to what had happened. She accepts that I did not disclose to the lady doctor the incident of rape or that who had committed the same. A suggestion was put to her that you did not disclose the incident of rape or did not disclose the name of the persons, to the doctor as no rape was committed upon you. There are several authorities in which it has been held that if the prosecutrix 78 of 121 79 FIR No. 455/2003 PS Narela fails to narrate the incident to lady doctor particularly when both of them are alone and fails to name the culprits, the only logical conclusion which comes out in such circumstances that no rape was committed and that the story of rape is false. So, judging this case from the above angle, it is crystal clear that neither any rape was committed upon the prosecutrix nor the accused persons are in any way involved in any case of rape.
I have carefully perused and analysed the evidence on the record. The testimonies of PW1 - prosecutrix as well as of PW3 - Dr. Monika have been discussed and analysed hereinbefore.
PW1 - prosecutrix during her crossexamination recorded on 09/02/2005 has deposed, which is reproduced and reads as under :
"I was medically examined by lady Doctor. She had taken me in her own room and when she examined me she was alone alongwith me. I did not disclose to the Doctor the incident of rape or who had committed the same. I had only answered the questions put to me by the Doctor. It is wrong to suggest that I had not disclosed the names of accused persons to the Doctor as rape was not committed upon me."
As far as the plea of the Learned Counsel for the accused that she (PW1 - prosecutrix) did not disclose to the lady Doctor the incident 79 of 121 80 FIR No. 455/2003 PS Narela of rape or that who has committed the same, is concerned, is found to have no substance as nondisclosure of the incident of rape and of the names of the perpetrators of the crime to the lady Doctor does not falsify the case of the prosecution which is otherwise proved on record by clear, cogent and trustworthy evidence.
In case "Noor Salam Vs. State (Govt. of NCT of Delhi)", 2013 II AD (Cri.) (DHC) 322 it has been held that it is not mandatory for Doctor to record in MLC or to make enquiry from injured about name of assailant. Generally Doctors on duty do not ask for assailant's name. Omission of injured to disclose assailant's name to Doctor does not discredit her testimony.
In the circumstance, there is no substance in the plea so raised by the Learned Counsel for the accused.
20. Learned Counsel for the accused submitted that prosecutrix has stated in her crossexamination that "I did not know accused Sri Bhagwan prior to the incident". She stated that the name of Sri Bhagwan became known to her after she had asked his name from Ran Singh. She has stated that she did not ask the name of parent of Sri Bhagwan from Ran Singh. She 80 of 121 81 FIR No. 455/2003 PS Narela admits that she had not talked with Sri Bhagwan nor she had asked the name of father of Sri Bhagwan or his address. After having set and concerned from her this point, when she was further asked, as to whether she gave any such statement to the Police i.e. Ex. PW1/A, wherein she named the father of accused Sri Bhagwan, she had to say 'no' to it, but her statement was otherwise i.e. in the statement she had given the name of father of Shri Bhagwan. Her statement on this aspect was put to her and she was duly confronted with the same, wherein father's name of Sri Bhagwan was given by her. If we look at the examinationinchief of the prosecutrix about the arrest of Sri Bhagwan, wherein she says that both of the accused including Sri Bhagwan was brought to Police Station by Police and were arrested there. Her such statement is against the version of Police. The Police version is that accused Shri Bhagwan was arrested from his Village Hamidpur, Delhi at the pointing out of prosecutrix. Even otherwise when she was not knowing the father's name of Sri Bhagwan as well as his address, then how Sri Bhagwan was arrested and brought to the Police Station. So, the doubt starts from the very beginning about believing her version in regard to arrest of Sri Bhagwan.
Learned Counsel for the accused submitted that she, with a view 81 of 121 82 FIR No. 455/2003 PS Narela to persuade the Court to believe that she knew the name of village of accused Shri Bhagwan, further stated that the name of his village was told to her by coaccused Ran Singh. This too is palpably false statement in as much as when she was confronted on this score from the statement recorded by the Police i.e., Ex. PW1/A, it was found that such a fact is not recorded in her statement and so, she was duly confronted with that statement.
I have carefully perused and analysed the evidence on record. The said lapses/discrepancies do not reflect upon the substantive evidence and the probative value of the statement made by PW1 - prosecutrix on the material and relevant aspects. In fact, so called improvements and contradictions are the 'clarifications' or elaborations' of facts in response to the questions put to her. However, those facts deposed by her do not affect her credibility as these are mere details of facts which she experienced and observed. There are bound to be some discrepancies in the narrations of witnesses when they speak out details. Nor do they vitiate or negate the case of the prosecution which is otherwise proved on record by clear, cogent and convincing evidence. The version of PW1 - prosecutrix on 82 of 121 83 FIR No. 455/2003 PS Narela the core substratum of the crime has remained intact.
During the entire lengthy and incisive crossexamination of PW1
- prosecutrix accused Ran Singh & Sri Bhagwan have not disputed their arrest vide arrest memo Ex. PW1/C and Ex. PW1/D respectively. Nor the accused Ran Singh and Sri Bhagwan disputed their arrest vide arrest memos Ex. PW1/C and Ex. PW1/D respectively during the crossexamination of PW12 - SI Harjinder Rana (IO).
It is settled law that if there is no crossexamination of a prosecution witness in respect of a statement of fact, it will only show the admission of that fact (Ref.: Wahid Ahmed and Ors. Vs. State (NCT of Delhi) 2011 VII AD (DELHI) 276).
Even the honest and truthful witness may differ in some details unrelated to the main incident because power of observation, retention and reproduction differ with individuals. Discrepancies which do not go to the root of the matter and shake the basic version of the witnesses, therefore cannot be annexed with undue importance. (Ref. 'Mahmood Vs. State', 1991 RLR 287).
It is to be noticed that both the accused Ran Singh and Sri Bhagwan during their statements recorded u/s 313 Cr.P.C. have not disputed 83 of 121 84 FIR No. 455/2003 PS Narela their presence at Holambi Kalan Farm House of Bhim Singh and of meeting the prosecutrix on the date of incident, when they stated that they had a dispute with prosecutrix who was in flesh trade regarding the advance payment.
The relevant part of statement of accused Ran Singh recorded u/s 313 Cr.P.C. is reproduced and reads as under : "Q66. Do you want to say anything else?
Ans. I am innocent and falsely implicated in this case. Prosecutrix was in a flesh trade and we have a dispute regarding the advance payment at the Holambi Kalan, Farm House of Bhim Singh and on the basis of which prosecutrix registered a false case against me and the coaccused."
The relevant part of statement of accused Sri Bhagwan recorded u/s 313 Cr.P.C. is reproduced and reads as under : "Q66. Do you want to say anything else?
Ans. I am innocent and falsely implicated in the case. Prosecutrix was in a flesh trade and a dispute arose in an advance payment and so the prosecutrix got registered a false case against me and the coaccused."
At the cost of repetition, as has been discussed and analysed here 84 of 121 85 FIR No. 455/2003 PS Narela inbefore, the theory that "on settlement of money regarding the flesh trade they (PW1 - prosecutrix & accused) had a dispute, the accused had not indulged with her (PW1 - prosecutrix) and had gone away" and the theory that "she (PW1 - prosecutrix) was dealing in flesh trade and in that connection met the accused at the Holambi Farm" propounded by the accused have not at all being made probable much established by any cogent evidence therefore had fallen flat on the ground.
In the circumstances, there is no substance in the plea so raised by the Learned Counsel for the accused.
21. Learned Counsel for the accused submitted that she (PW1 - prosecutrix) during her crossexamination has stated that she was taken by the accused to Moti Nagar, when she was asked, "did she know where Moti Nagar was", to which she said "no", but with a view to make the Court believe that she came to know the name of Moti Nagar from accused Ran Singh, her lie was detected when she was confronted with the statement Ex. PW1/A, where no such mention of her knowing the name of Moti Nagar, from Ran Singh is found. Lots of questions have been asked in cross examination from her about her going to Moti Nagar, staying in Moti Nagar, 85 of 121 86 FIR No. 455/2003 PS Narela but to all those questions, she gave evasive reply, which only and clearly point out that the story of Moti Nagar is a concocted story. Some of the answers to the questions about Moti Nagar are that she says that I cannot tell the approximate distance from my farm house to Moti Nagar. I cannot tell approximate time taken to cover up such distance, she stated that she remained sit in the car alone for about 1½ hours when the accused left her alone in the car and went somewhere and the car was not even locked. She states that I had told this fact of sitting in the car to the Police, which fact was found to be wrong as there was no such mention in her statement Ex. PW1/A, to which she was duly confronted. She says that I did not object as to why I was brought to Moti Nagar and not taken to Kundli for getting job. She further states that I was taken to farm house at Bakoli (the place where the alleged rape had been committed) by the accused on the pretext that the employer, who will give her job, will meet her at the farm house. She has said this, with a view to make the Court believe that how accused persons persuaded her to take from home to farm house of Bakoli. This statement of her as stated above is also a complete lie in as much as, although she says I had stated so to the Police as the same does not find mention in Ex. PW1/A, from which she was duly confronted. She accepts that the nature of job was 86 of 121 87 FIR No. 455/2003 PS Narela not explained to me by the accused while I was taken away. She also said that even she did not ask the same from accused persons, here we should pause for some time and visualized the reality. It is not unthinkable that a person is wanting a job and other person is promising him for a job and the person, wanting the job, would not ask what kind of job he/she will be given or atleast there was no such talk of kind of the job between the two. It is simply unbelievable that about the nature of job none of them will talk at all. The story of job appears to be a totally concocted story. If we look the things from angle of correct perspective the nature of job should have been talked at the very moment, when the prosecutrix or her mother had asked Ran Singh for a job or at least at the time when she was taken by the accused Ran Singh and coaccused for providing her a job. So the story of job from the very beginning till end appears to be a concocted story, with a view to prove first false case against the accused. Learned Counsel for the accused submitted that PW1 during her crossexamination has further stated that she does not know as to how much time it took from Moti Nagar to Farm House at Bakoli. Neither she was able to mention the approximate distance or the time took to cover up such distance.
87 of 121 88 FIR No. 455/2003 PS Narela I have carefully perused and analysed the evidence on the record. The testimony of PW1 - prosecutrix has been reproduced, discussed and analysed hereinbefore, which is found to be natural, clear, cogent, trustworthy and inspiring confidence. She has withstood the rigors of crossexamination without being shaken. There is nothing in her statement to suggest that she had any animus against the accused to falsely implicate them in the case. Her version of the core spectrum of crime has remained intact.
As regards the plea raised, PW1 - prosecutrix has deposed naturally, honestly and clearly the facts what she could, reasonably disclose. Nothing more can be read in the said part of her testimony.
It is well settled that the powers of observation, retention and reproduction differ with individuals. What one may notice another may not. An object or movement might emboss its image on one person's mind whereas it might go unnoticed on the part of another.
The Hon'ble Supreme Court has held, "...Exaggerations per se do not render the evidence brittle. But it can be one of the factors to test the credibility of the prosecution version, when the entire evidence is put in a 88 of 121 89 FIR No. 455/2003 PS Narela crucible for being tested on the touchstone of credibility. Therefore, mere marginal variations in the statements of a witness cannot be dubbed as improvements as the same may be elaborations of the statement made by the witness earlier..." (Ref. A. Shankar Vs. State of Karnataka, 2011 VII AD (SC) 37) 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 PW1 - prosecutrix says that her mother is Chowkidar at the farm house of Bhim Singh for the last 3½ years. Her mother is a woman of 41 years as her mother has given her age as 41 years while being examined as PW2 and if we compute her age at the time of her employment as Chowkidar, it come to about 37 years of age. Is it possible that anybody will keep a woman of 37 years of age, having small children, particularly as a Chowkidar at the farm house. Even people don't keep female chowkidar at their houses situated in densely populated locality. It is common knowledge that chowkidar at the farm house are not only male person but only those persons are kept as chowkidar who are not only stout and fit but have some weapon with them.
89 of 121 90 FIR No. 455/2003 PS Narela I have carefully perused and analysed the evidence on the record. It is not made clear by the Learned Counsel for accused as to what benefit, they intends to reap by raising such plea.
PW1 - prosecutrix has clearly deposed regarding the facts, the work her mother (PW2 - Meera) was doing and about her age. PW2 - Meera, mother of prosecutrix has also clearly deposed about her age as 41 years and that she was working as Chowkidar at Bhim Singh Farm House, Narela, Delhi.
Nothing more can be read in the said parts of their testimonies. The hypothesis and theoritical assumption and presumption raised by Learned Counsel for accused, "Is it possible that anybody will keep a woman of 37 years of age, having small children, particularly as a Chowkidar at the farm house" is totally baseless and is a figment of imagination.
PW2 - Meera in her examinationinchief has specifically deposed that she was working as Chowkidar at Bhim Singh Farm House, Narela, Delhi. The said part of her testimony has nowhere been challenged 90 of 121 91 FIR No. 455/2003 PS Narela during her incisive and lengthy crossexamination, nor any suggestion in this regard was put to her during her crossexamination. Nor any evidence to the contrary has been produced or proved on the record in this regard on behalf of the accused.
In the circumstances, it does not lie in the mouth of the accused that PW2 - Meera was not working as Chowkidar at Bhim Singh Farm House, Narela, Delhi.
In the circumstance, there is no substance in the plea so raised by the Learned Counsel for the accused.
23. Learned Counsel for the accused submitted that PW1 - prosecutrix in her crossexamination accepted that except her mother nobody else is living in the farm house and she also accepted that they had no acquaintance in Delhi. She further accepts in her crossexamination that they have been going from their farm house at Holambi to Alipur very often for making telephone calls. How is it possible, if they are having no acquaintance in Delhi, this is a very big question, as to whether the prosecutrix is telling truth or hiding something from the Court. She had 91 of 121 92 FIR No. 455/2003 PS Narela admitted that she was not taken to telephone booth from where she made telephone call to the Police. This shows that no such telephone call was ever made and the story is not correct.
I have carefully perused and analysed the evidence on the record. At the outset, Learned Counsel for accused failed to explain as to what benefit they intend to reap by raising such plea.
The testimony of PW1 - prosecutrix has been discussed and analysed hereinbefore. Her testimony on perusal and analysis is found to be clear, natural, cogent, convincing, trustworthy and inspiring confidence. As regards the plea raised that PW1 - prosecutrix has deposed regarding the facts what were in her knowledge and what she observed, experienced and performed. Nothing more can be read in the said part of her testimony. She has clearly stated that she was not taken to telephone booth from where she made call to the Police. If she was not taken to telephone booth from where she made call to the Police such discrepancy or lapse may reflect on the investigation but it does not reflect upon the probative value of statement of PW1 prosecutrix made on material and relevant aspects. In the witness 92 of 121 93 FIR No. 455/2003 PS Narela box, PW1 - prosecutrix has withstood the test of crossexamination and her testimony is consistent throughout. Her version on the core spectrum of the crime has remained intact.
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 PW2 - Meera has stated that she had told everything to Bhim Singh but Bhim Singh has not been made as a witness in the proceedings nor Bhim Singh has been produced and examined.
I have carefully perused and analysed the evidence on the record. It is not the case of the accused that Bhim Singh was cited as a witness in the list of prosecution witnesses and has been withheld by the prosecution.
As far as the nonciting as witness, nonproduction and non examination of Bhim Singh, owner of Bhim Singh Farm House, where PW2
- Meera, mother of PW1 prosecutrix was working as Chowkidar is 93 of 121 94 FIR No. 455/2003 PS Narela concerned, PW12 - SI Harjinder Rana (IO) during her crossexamination has explained the factual situation and has categorically and very specifically deposed that : "I tried to locate Bhim Singh at that time, but he was not available due to late hours, later on he stated that he does not want to be involved in the present case. Volunteered, moreover, he was not required in this case. I do not recollect what reply exactly he gave at that time. He specifically said that the incident had happened with the prosecutrix and I have got nothing to do in the matter and that is why he was not cited/examined as witness."
PW2 - Meera in her examinationinchief has specifically deposed that she knew Ran Singh (Accused) who used to come in the Farm House of Bhim Singh. The said part of testimony of PW2 - Meera has not been disputed either by accused Ran Singh or accused Sri Bhagwan. If, for the accused, Bhim Singh was a very material witness, he could have been produced and examined by accused in their defence, but it was not done so.
It is also to be noticed that accused Ran Singh during his statement recorded u/s 313 Cr.P.C. has admitted it to be correct that he was the friend of Bhim Singh and he (accused Ran Singh) alongwith coaccused Sri Bhagwan used to visit the farm house of Bhim Singh. The relevant part of statement u/s 313 Cr.P.C. of accused Ran Singh is reproduced and reads as under : 94 of 121 95 FIR No. 455/2003 PS Narela "Q1. It is in evidence against you accused Ran Singh and your coaccused that you were the friend of one Bhim Singh and used to visit in the farm house of Bhim Singh. What have you to say?
Ans. It is correct."
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 prosecutrix (PW1) was asked very direct question during crossexamination, which was very risky also. The question was, whether you objected or not, when the rape was committed upon you and whether you said or not why you are i.e. the accused committing rape upon me, particularly when you i.e. accused had brought her to the farm, been asked from the accused, as to what happened in regard to the job, but no such question was asked. This shows that the story of job is false and concocted one.
I have carefully perused and analysed the evidence on the record. Learned Counsel for accused appears to have raised this plea 95 of 121 96 FIR No. 455/2003 PS Narela without being attuned to the mental pressure, threatened atmosphere and the circumstances through which PW1 - prosecutrix was passing at the time when she was ravished by both the accused Ran Singh and Sri Bhagwan.
Although, the testimony of PW1 - prosecutrix has been reproduced, discussed and analysed hereinbefore yet at the cost of repetition it is pertinent to reproduce the relevant part of examinationin chief of PW1 - prosecutrix which reads as under : "At about 12:30 in the afternoon, both the accused persons present in the Court came to (in) Wagon R No. 7414. Thereafter, both the accused persons brought me to Moti Nagar at Delhi and thereafter took me to village Bakoli at Arora Farm House. It was a big house. Both the accused persons took me in a room in that house which had a big bed. They asked me to sit there and left the room. After some time accused Sri Bhagwan came inside the room and asked me to maintain relations with him. I refused. He threatened me that since only three of us present in that farm house I will be kill (killed).
Thereafter, accused Sri Bhagwan did galat kaam with me against my will and consent after removing my clothes. Thereafter, accused Ran Singh present in the Court came inside the room and also threatened to kill me and thereafter he also did galat kaam with me against my will and consent."
"...Thereafter, both the accused persons left me at my house in the same vehicle. They also threatened to kill in case I disclose the incident of rape to anyone..."
96 of 121 97 FIR No. 455/2003 PS Narela During her crossexamination recorded on 09/02/2005, PW1 - prosecutrix has specifically deposed that : "...I had not objected to the accused persons when rape was committed upon me as to why they are committing such act as I was brought to the farm house for getting a job..."
Analysing the entire testimony of PW1 - prosecutrix, it clearly transpires that she described the scenario implicating both the accused to be the authors of the crime. Inspite of incisive crossexamination of PW1 - prosecutrix nothing material has brought out so as to impeach her creditworthiness. She has withstood the rigors of crossexamination without being shaken. Her version on the core facts about the committal of the crime by the accused upon her (prosecutrix) has remained intact.
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 PW1 - prosecutrix in her crossexamination has stated that after reaching house she 97 of 121 98 FIR No. 455/2003 PS Narela first took her meals, which means no untoward incident much less the mischief of rape happened with her.
I have carefully perused and analysed the evidence on the record. Learned Counsel for accused failed to explain the basis for the conclusion drawn that no untoward incident much less the mischief of rape happened with her, when after reaching house PW1 - prosecutrix firstly had taken her meals. It appears that such plea has been raised overlooking the consistent, cogent and convincing testimonies of PW1 - prosecutrix and PW2 - Meera, her mother on the record.
At the cost of repetition, it is pertinent to reproduce the relevant part of the testimony of PW1 - prosecutrix which read as under : "At about 12:30 in the afternoon, both the accused persons present in the Court came to (in) Wagon R No. 7414. Thereafter, both the accused persons brought me to Moti Nagar at Delhi and thereafter took me to village Bakoli at Arora Farm House. It was a big house. Both the accused persons took me in a room in that house which had a big bed. They asked me to sit there and left the room. After some time accused Sri Bhagwan came inside the room and asked me to maintain relations with him. I refused. He threatened me that since only three of us present in that farm house I will be kill (killed).
98 of 121 99 FIR No. 455/2003 PS Narela Thereafter, accused Sri Bhagwan did galat kaam with me against my will and consent after removing my clothes. Thereafter, accused Ran Singh present in the Court came inside the room and also threatened to kill me and thereafter he also did galat kaam with me against my will and consent.
Thereafter, both the accused persons left me at my house in the same vehicle. They also threatened to kill in case I disclose the incident of rape to anyone. After about one hour, I disclose the incident of rape to my mother. My mother went to Alipur to call the Police on 100 number however, we could not get contacted the Police. Thereafter, my mother took me to the office of Bhim Singh where we again called the Police at 100 number. Police came at the Alipur bus stand where we were standing and they took us to PS - Alipur. After enquiries they left us at PS - Narela. After enquiries I was taken to the hospital. After my medical examination I was again brought back to the PS where my statement was recorded. My statement to the Police is Ex. PW1/A which bears my signatures at point 'A'."
PW2 - Meera, mother of the prosecutrix in her examinationin chief has specifically deposed that : "At about 6:30 p.m. her daughter came home. After preparing food she had asked her daughter about her job. First she was scared and disturbed but she repeatedly asked her. Her daughter started crying and told her that accused persons had not got her any job but had committed rape upon her at Arora Farm House. Thereafter, she made a call at 100 number from the office of Bhim Singh, owner of the farm house where they were living and police advised her to wait at the bus stand. Thereafter, she and her daughter waited at the Bus Stand of Alipur. Police came and took them to 99 of 121 100 FIR No. 455/2003 PS Narela PS Alipur."
Inspite of incisive crossexamination of PW1 - prosecutrix and PW2 - Meera, nothing material has been brought out on the record so as to impeach their creditworthiness. They have withstood the rigors of cross examination without being shattered. There is nothing in their statements to suggest that they had any animus against the accused to falsely implicate them in the case. The version of PW1 - prosecutrix on the core substratum of the crime has remained intact.
The sight cannot be lost of the fact that the Indian women has tendency to conceal offence of sexual assault because it involves her prestige as well as prestige of her family. Only in few cases, the victim girl or the family members has courage to go before the Police Station and lodge a case.
Normally a woman would not falsely implicate for the offence of rape at the cost of her character. In Indian society, it is very unusual that a lady with a view to implicate a person would go to the extent of stating that she was raped. [Ref. Madan Lal Vs. State of MP (1997) 2 Crimes 210 (MP)].
The Hon'ble Supreme Court in case Karnel Singh Vs. State of 100 of 121 101 FIR No. 455/2003 PS Narela M.P (1995) 5 SCC 518, has held : "7.......The submission overlooks the fact that in India women are slow and hesitant to complain of such assaults and if the prosecutrix happens to be a married person she will not do anything without informing her husband. Merely because the complaint was lodged less then promptly does not raise the inference that the complaint was false. The reluctance to go to the police is because of society's attitude towards such women; it casts doubt and shame upon her rather than comfort and sympathise with her. Therefore, delay in lodging complaints in such cases does not necessarily indicate that her version is false (emphasis added)."
The Hon'ble Supreme Court in Para 21 in case Rajinder V. State of H.P. AIR 2009 SC 3022 has interalia held : "21. In the context of Indian Culture, a woman victim of sexual aggression would rather suffer silently than to falsely implicate somebody. Any statement of rape is an extremely humiliating experience for a woman and until she is a victim of sex crime, she would not blame anyone but the real culprit. While appreciating the evidence of the prosecutrix, the Courts must always keep in mind that no selfrespecting woman would put her honour at stake by falsely alleging commission of rape on her and, therefore, ordinarily a look for corroboration of her testimony is unnecessary and uncalled for......."
The Hon'ble Supreme Court in Para 13 in case Om Prakash Vs. State of Uttar Pradesh AIR 2006 SC 2214 has interalia held : 101 of 121 102 FIR No. 455/2003 PS Narela "13. It is settled law that the victim of sexual assault is not treated as accomplice and as such, her evidence does not require corroboration from any other evidence including the evidence of a doctor. In a given case even if the doctor who examined the victim does not find sign of rape, it is no ground to disbelieve the sole testimony of the prosecutrix. In normal course a victim of sexual assault does not like to disclose such offence even before her family members much less before public or before the police. The Indian women has tendency to conceal such offence because it involves her prestige as well as prestige of her family. Only in few cases, the victim girl or the family members has courage to go before the police station and lodge a case......"
The Hon'ble Supreme Court in Para 20 in case 'Satyapal Vs. State of Haryana AIR 2009 SC 2190' has interalia held : "20. This Court can take judicial notice of the fact that ordinarily the family of the victim would not intend to get a stigma attached to the victim. Delay in lodging the First Information Report in a case of this nature is a normal phenomenon......."
In the case of 'Wahid Khan Vs. State of Madhya Pradesh', (2010) 2 SCC 9, the Hon'ble Supreme Court held : "It is a matter of common law that in Indian society any girl or woman would not make such allegations against a person as such she is fully aware of the repercussions flowing therefrom. If she is found to be false, she would be looked by the society with contempt throughout her life. For an 102 of 121 103 FIR No. 455/2003 PS Narela unmarried girl, it will be difficult to find a suitable groom. Therefore, unless an offence has really been committed, a girl or a woman would be extremely reluctant even to admit that any such incident had taken place which is likely to reflect on her chastity. She would also be conscious of the danger of being ostracized by the society. It would indeed be difficult for her to survive in Indian society which is, of course, not as forward looking as the western countries are."
In the circumstance, there is no substance in the plea so raised by the Learned Counsel for the accused.
27. Learned Counsel for the accused submitted that PW1 - prosecutrix has stated in her crossexamination about other members of her family i.e. her brother 1314 years of age, having some knowledge about this incident, her Naani who is having complete knowledge about the incident but none of them were made witnesses by the prosecution, which again casts doubt about the prosecution story.
I have carefully perused and analysed the evidence on the record. It is the quality of evidence and not the number of witnesses that 103 of 121 104 FIR No. 455/2003 PS Narela matters (Ref. : 'Pal Singh Vs. State of U.P.' (1979) 4 SCC 345; 'State of U.P. Vs. Anil Singh', AIR 1988 SCC 1998 and 'Krishna Mochi Vs. State of Bihar' 2002 IV AD (S.C.) 45).
PW1 - prosecutrix, the victim, who has undergone the rigors of the offence committed upon her has unfolded the incident and PW2 - Meera, her mother, to whom she (PW1 - prosecutrix) disclosed the facts relating to crime shortly after the incident at the first available opportunity being relevant under sections 6 & 8 of the Indian Evidence Act, 1872 have been produced and examined by the prosecution. Their testimonies have been discussed and analysed hereinbefore and have been held to be clear, cogent, trustworthy and inspiring confidence. There is nothing in their statements to suggest that they had any animus against the accused to falsely implicate them in the case.
In the circumstances, nonciting and nonexamination of brother and Nani (maternal grand mother) having some/complete knowledge about the incident does not affect the case of the prosecution which is otherwise proved on record by clear, cogent and convincing evidence.
104 of 121 105 FIR No. 455/2003 PS Narela In case 'Narain Singh Vs. State' 2013 I AD (DELHI) 685, it has been held by the Hon'ble Delhi High Court that once it is held that the prosecution evidence is reliable and trustworthy and proved the offence, failure to examine other witnesses is not fatal, nonexamination of further witnesses does not affect the credibility of the witnesses relied upon.
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 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. Nonexamination 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. If the witnesses already examined are reliable and the 105 of 121 106 FIR No. 455/2003 PS Narela testimony coming from their mouth is unimpeachable the Court can safely act upon it uninfluenced by the factum of nonexamination of the witnesses."
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 a suggestion was put to the prosecutrix (PW1) that on account of some dispute regarding settlement of money, she had falsely involved the accused persons and that the accused persons did not indulge in any criminal act and that they have been falsely involved which she denied.
I have carefully perused and analysed the evidence on the record. Undisputably, the said suggestions regarding which the plea has been raised were put to PW1 - prosecutrix that on account of some dispute regarding settlement of money she has falsely involved the accused persons or that the accused persons did not indulge in any criminal act or that they have been falsely involved, were negated by 106 of 121 107 FIR No. 455/2003 PS Narela PW1 - prosecutrix. However, the said suggestions so put to PW1 - prosecutrix have not been made probable much established by any cogent evidence. There is no iota of evidence led by the accused explaining the dispute regarding the settlement of money. Nor it has been explained by the accused about the criminal act, its nature, its kind in which they did not indulge in. Nor it has been explained by the accused as to why they have been falsely involved by the prosecutrix (PW1).
It appears that in order to save their skin from the clutches of law, the abovesaid vague unfounded and baseless suggestions have been put to PW1 - prosecutrix which she negated.
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 submitted that a suggestion was put by the accused to PW2 - Meera that her husband left them on account of their illicit activities which was negated by her.
107 of 121 108 FIR No. 455/2003 PS Narela I have carefully perused and analysed the evidence on the record. PW2 - Meera during her crossexamination recorded on 27/07/2005 has deposed, which is reproduced and reads as under : "My husband had initially came on the Bhim Singh's farm house. He remained with us 34 months and then he left us without disclosing his whereabouts. I cannot give any reasons for his deserting us. It is wrong to suggest that my husband left us because he was unhappy with us because of our illicit activities."
From the aforesaid narration of PW2 - Meera, it is clearly indicated that her husband, after remaining with them for 3/4 months at the Bhim Singh's farm house left them without disclosing his whereabouts. She cannot give any reasons for his deserting them.
The said suggestion so put to PW2 - Meera, mother of prosecutrix has not been made probable much established by any cogent evidence.
Neither it has been explained nor any iota of evidence produced or proved by the accused explaining as to what were the nature and kind of illicit activities of PW2 - Meera in which they were involved, on account of 108 of 121 109 FIR No. 455/2003 PS Narela which her husband left them.
It appears that accused in order to save their skin from the clutches of law and in order to create doubt in the clear, cogent, convincing and trustworthy testimony of PW2 - Meera, the abovesaid vague, unfounded and baseless suggestion has been put to PW2 - Meera which she negated.
In the circumstance, there is no substance in the plea so raised by the Learned Counsel for the accused.
30. Learned Counsel for the accused submitted that PW2 - Meera nowhere stated in her examinationinchief that she asked the accused persons as to why such a long time has been taken.
I have carefully perused and analysed the evidence on the record. With due respect, it is not made clear by the Learned Counsel for the accused as to what they want to convey by raising the said plea. By raising the said plea, should it be taken or is it the case/defence of accused that at the time of leaving/dropping PW1 - prosecutrix at her home, they (accused) waited for PW2 - Meera to ask them as to why 109 of 121 110 FIR No. 455/2003 PS Narela such a long time has been taken.
If in the estimation of the Learned Counsel for the accused, PW2
- Meera nowhere stated in her examinationinchief that she asked the accused persons as to why such a long time has been taken, then they should have sought an explanation from her (PW2 - Meera) during her cross examination, who would have been fully capable of explaining correctly, the factual situation. For such failure accused are to blame themselves and none else.
At the cost of repetition, it is pertinent to reproduce the relevant part of the testimony of PW1 - prosecutrix which read as under : "At about 12:30 in the afternoon, both the accused persons present in the Court came to (in) Wagon R No. 7414. Thereafter, both the accused persons brought me to Moti Nagar at Delhi and thereafter took me to village Bakoli at Arora Farm House. It was a big house. Both the accused persons took me in a room in that house which had a big bed. They asked me to sit there and left the room. After some time accused Sri Bhagwan came inside the room and asked me to maintain relations with him. I refused. He threatened me that since only three of us present in that farm house I will be kill (killed).
Thereafter, accused Sri Bhagwan did galat kaam with me against my will and consent after removing my clothes. Thereafter, accused Ran Singh present in the Court came inside the room and also threatened to kill me and thereafter he also did galat kaam with me against my will and consent.
110 of 121 111 FIR No. 455/2003 PS Narela Thereafter, both the accused persons left me at my house in the same vehicle. They also threatened to kill in case I disclose the incident of rape to anyone. After about one hour, I disclose the incident of rape to my mother. My mother went to Alipur to call the Police on 100 number however, we could not get contacted the Police. Thereafter, my mother took me to the office of Bhim Singh where we again called the Police at 100 number. Police came at the Alipur bus stand where we were standing and they took us to PS - Alipur. After enquiries they left us at PS - Narela. After enquiries I was taken to the hospital. After my medical examination I was again brought back to the PS where my statement was recorded. My statement to the Police is Ex. PW1/A which bears my signatures at point 'A'."
PW2 - Meera, mother of the prosecutrix in her examinationin chief has specifically deposed that : "At about 6:30 p.m. her daughter came home. After preparing food she had asked her daughter about her job. First she was scared and disturbed but she repeatedly asked her. Her daughter started crying and told her that accused persons had not got her any job but had committed rape upon her at Arora Farm House. Thereafter, she made a call at 100 number from the office of Bhim Singh, owner of the farm house where they were living and police advised her to wait at the bus stand. Thereafter, she and her daughter waited at the Bus Stand of Alipur. Police came and took them to PS Alipur."
Inspite of incisive crossexamination of PW1 - prosecutrix and PW2 - Meera, nothing material has been brought out on the record so as to 111 of 121 112 FIR No. 455/2003 PS Narela impeach their creditworthiness. They have withstood the rigors of cross examination without being shattered. The version of PW1 - prosecutrix on the core substratum of the crime has remained intact.
In the circumstance, there is no substance in the plea so raised by the Learned Counsel for the accused.
31. Learned Counsel for the accused submitted that PW2 - Meera, mother of the prosecutrix was asked many questions, which were of a sort of improvement from her statement under section 161 Cr.P.C. She was asked the question whether in her statement under section 161 Cr.P.C., did she tell that she had asked Ran Singh for job, to which she said yes, but there was no such mention about it in her statement Ex. PW2/DA, for which she was duly confronted. She also states that Ran Singh had assured me job. This was also an improvement and false statement and she was confronted in regard to it, with her statement Ex. PW2/DA, where it was not so recorded. Similarly, there are several other questions put regarding the job, which are mere improvement and which are duly confronted to the statement Ex. PW2/DA. From these improvements and contradictions, it is crystal clear that the story of job is totally false.
112 of 121 113 FIR No. 455/2003 PS Narela Learned Counsel for accused further submitted that all the telephonic calls, as mentioned by her in her statement was the improvement and false and in contradiction to the statement u/s 161 Cr.P.C. Ex. PW2/DA, where visits and talks are not so recorded. Similarly she was confronted with so many other portions of her statement, some of which are very important. She was confronted with her statement about the accused dropping her daughter within 10 minutes. It is not so recorded in her statement by the Police. Similarly she was asked whether she asked about the job, from her statement Ex. PW2/DA from which she has been duly confronted. Similarly, she was asked whether she asked about the nature of job from the accused persons. It as not stated in her statement. She was duly confronted with her statement Ex. PW2/DA on this aspect too that "did your daughter used the word 'Balatkar' and did she tell the same in your presence to the Police". There is also no mention of the said word and she has been duly confronted with her statement Ex. PW2/DA in this regard. Similarly, she was also confronted to the effect that "did you tell in your statement to the Police that your daughter told that rape was committed upon her at Arora Farm House". There was no such mention of it in her statement, from which she was duly confronted. So, there are so many other improvements made 113 of 121 114 FIR No. 455/2003 PS Narela by her which has been mentioned in her crossexamination and the net result of all such improvements are that the story told by her is totally false.
I have carefully perused and analysed the evidence on the record. At the cost of repetition, it is pertinent to refer to the testimony of PW2 - Meera.
PW2 - Meera, is the mother of the prosecutrix, who in her examinationinchief has deposed that at about 6:30 p.m. her daughter came home. After preparing food she had asked her daughter about her job. First she was scared and disturbed but she repeatedly asked her. Her daughter started crying and told her that accused persons had not got her any job but had committed rape upon her at Arora Farm House. Thereafter, she made a call at 100 number from the office of Bhim Singh, owner of the farm house where they were living and police advised her to wait at the bus stand. Thereafter, she and her daughter waited at the Bus Stand of Alipur. Police came and took them to PS Alipur.
The careful perusal and analysis of the testimony of PW2 - Meera reveals that her testimony is clear,natural and cogent and she has 114 of 121 115 FIR No. 455/2003 PS Narela deposed regarding the facts which she experienced and observed. She has withstood the rigors of crossexamination, without being shaken. The accused failed to elicit any material or relevant discrepancies or inconsistencies despite searching crossexamination. There is also nothing in her statement to suggest that she had any animus against the accused to falsely implicate them in the case. The witness has made some improvements and deposed certain facts which were not stated in the statement u/s 161 Cr.P.C. (Ex. PW2/DA). However, those facts deposed by her do not affect her credibility as these are mere details of the facts which she experienced and observed which the witness could not reasonably disclose in the statement (Ex. PW2/DA). In fact, so called improvements are the 'clarifications' or 'elaboration' of facts in response to the questions put to her which she was not supposed to state in statement u/s 161 Cr.P.C. (Ex. PW2/DA).
Nothing more can be read in the said part of her testimony labelled as contradictions and improvements. There are bound to some discrepancies in the narration of witnesses when they speak out details. Moreover, these are merely the inconsistencies on the fringe without materially affecting the credibility of the evidence and do not falsify the case 115 of 121 116 FIR No. 455/2003 PS Narela of the prosecution which is otherwise proved on record by clear, cogent and convincing evidence.
In case A. Shankar Vs. State of Karnataka, 2011 VII AD (SC) 37, the Hon'ble Supreme Court has held :
"....... Exaggerations per se do not render the evidence brittle. But it can be one of the factors to test the credibility of the prosecution version, when the entire evidence is put in a crucible for being tested on the touchstone of credibility. Therefore, mere marginal variations in the statements of a witness cannot be dubbed as improvements as the same may be elaborations of the statement made by the witness earlier.
Irrelevant details which do not in any way corrode the credibility of a witness cannot be labelled as omission or contradictions.....".
In case "Bharwada Bhoginbhai Hirjibhai Vs. State of Gujrat" (1983) 3 SCC 217, the Hon'ble Supreme Court, has held much importance cannot be attached to minor discrepancies for the reasons :
1) By and large a witness cannot be expected to possess a photographic memory and to recall the details of an incident. It is not as if a video tape is replayed on mental screen; 2) Ordinarily it so happens that a witness is overtaken by events. The witness could not have anticipated the occurrence 116 of 121 117 FIR No. 455/2003 PS Narela which so often has an element of surprise. The mental faculties therefore cannot be expected to be attuned to absorb the details; 3) The powers of observation differ from person to person, what one may notice, another may not. An object or movement might emboss its image on one person's mind whereas it might go unnoticed on the part of another.
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 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 : 117 of 121 118 FIR No. 455/2003 PS Narela "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 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.
118 of 121 119 FIR No. 455/2003 PS Narela
32. Learned Counsel for accused referred to the cases and are reported as 'Narender Kumar Vs. State (NCT of Delhi)', 2012 VI AD (S.C.) 112, 'Lala Ram & Anr. Vs. State of Madhya Pradesh', (2009) 1 SCC (Cri) 17, 'Pappu Vs. State of Delhi', 2010(1) Crimes 580 (Del.), 'Raju & Ors. Vs. State of Madhya Pradesh', (2009) 3 SCC (Cri) 751, 'Radhu Vs. State of Madhya Pradesh', (2008) 2 SCC (Cri) 207, 'Sudhanshu Sekhar Sahoo Vs. State of Orissa', 2003 [1] JCC 154, 'Vimal Suresh Kamble Vs. Chaluverapinake Apal S.P.', 2003 [1] JCC 164, 'Naravan @ Naran Vs. State of Rajasthan', 2007(2) JCC 1202, 'Satish Kumar Vs. State', Crl. A. No. 38/1992, decided on 09/08/1995 (DHC), 'Kishan Pal Vs. State', Crl. A. No. 81/1997, decided on 26/03/2004 (DHC), 'Johnson Vs. State', Crl. A. No. 775/2011, decided on 29/02/2012 (DHC) and 'Bibhishan Vs. State of Maharashtra', 2008 CRI. L. J.
721. I have carefully gone through the same. With due respect there is no dispute as to what has been held therein but the same are wholly distinguishable in view of the peculiar facts and nature of evidence adduced in the instant case. In case titled Sunil Kumar Vs. State 181 (2011) DLT 528(DB) it was held that "No case can strictly be a precedent in a 119 of 121 120 FIR No. 455/2003 PS Narela 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".
33. In view of above and in the circumstances, prosecution has thus proved beyond shadows of all reasonable doubts that accused Ran Singh and Sri Bhagwan on 07/12/2003 at 12:30 p.m. in furtherance of their common intention enticed PW1 - Prosecutrix, aged about 16 years (to be exact 16 years 01 month and 15 days) from her lawful guardianship on the pretext of getting her a job and took her to Arora Farm House at village Bakoli, in a Wagon - R Car No. DL8CD7414 (Ex. P2) and committed rape upon her without her consent and against her will and also criminally intimidated her with a threat to kill her in case she disclosed the incident of rape to anyone.
I, accordingly, hold accused Ran Singh and Sri Bhagwan guilty for the offences punishable u/s 376(2)(g) IPC and u/s 506(2)/34 IPC and convict them thereunder.
120 of 121 121 FIR No. 455/2003 PS Narela
34. In view of above discussion, I am of the considered opinion that as far as the involvement of accused Ran Singh and Sri Bhagwan in the commission of the offences u/s 376(2)(g) IPC and u/s 506(2)/34 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 Ran Singh and Sri Bhagwan beyond reasonable doubt and there is no room for hypothesis, consistent with that of innocence of accused. I, therefore, hold accused Ran Singh and Sri Bhagwan guilty for the offences punishable u/s 376(2)(g) IPC and u/s 506(2)/34 IPC and convict them thereunder.
Announced in the open Court (MAHESH CHANDER GUPTA) on 14th Day of December, 2013 Additional Sessions Judge Special Fast Track Court (N/W District), Rohini, Delhi 121 of 121