Delhi District Court
State vs . 1. Mukesh Khanna on 18 March, 2013
1
FIR No. 280/10
PS - Vijay Vihar
IN THE COURT OF SH. MAHESH CHANDER GUPTA :
ADDITIONAL SESSIONS JUDGE : SPECIAL FAST TRACK
COURT : NORTHWEST DISTRICT : DELHI
SESSIONS CASE NO. : 106/13
Unique ID No. : 02404R0285392010
State Vs. 1. Mukesh Khanna
S/o Mangal Singh
R/o C171, Sector - 24,
Rohini, Delhi.
FIR No. : 280/10
Police Station : Vijay Vihar
Under Sections : 376/356/365/368/342/506/120B IPC
Date of committal to session Court : 12/11/2010
Date on which judgment reserved : 08/03/2013
Date of which judgment announced : 18/03/2013
J U D G M E N T
1. Briefly stated the case of the prosecution as unfolded by the report under section 173 Cr.P.C is as under :
1 of 68 2 FIR No. 280/10 PS - Vijay Vihar That on 10/08/2010, on receipt of DD No. 8A, SI Ramesh Thakur alongwith Constable Ram Avtar, W/Constable Santosh reached at C199, J. J. Colony, Sector - 24, Rohini where Smt. Alok Nandini W/o Brij Bihari Lal, R/o C199, J. J. Colony, Sector - 24, Rohini, Delhi produced the prosecutrix (name withheld being a case u/s 376 IPC).
Prosecutrix, in the presence of Lady Constable Santosh and Smt. Alok Nandini made the statement to SI Ramesh Thakur which is to the effect that, she lives at Village Fertilizer, Koitawasa, PS and Post Office Tager Pali, District Sundergarh, Orissa. Her parents have since died. In her neighbourhood Basti, Ganga and Tanu lives, who after playing deception of providing employment brings the village girls to Delhi. On 21/05/2010, her (prosecutrix) younger sister Lakshmi, aged - 15 years for providing employment was brought to Delhi by Ganga and Tanu. On 20/07/2010, Ganga and Tanu told her (prosecutrix) that the condition of her sister Lakshmi is bad so bring her back from Delhi. On 03/08/2010, Ganga sent her (prosecutrix) with her sister Tanu to Delhi. She (prosecutrix) alongwith Tanu came at C171, J. J. Colony, Sector - 24, Rohini, Delhi where Mukesh Khanna Husband of Ganga met. She (prosecutrix) asked Mukesh Khanna and Tanu to let her meet her sister 2 of 68 3 FIR No. 280/10 PS - Vijay Vihar Lakshmi. Mukesh Khanna said roaming will be deducted (roaming katega) and Lakshmi will come on date 12th (bara tarikh). On which prosecutrix said she will not stay in Delhi, let she be sent to her village. Mukesh Khanna said presently he is having no money let she (prosecutrix) be employed for some work (kahin kaam pe lagva du). Tanu also told her to do the work. She (prosecutrix) refused to do the work but Mukesh Khanna and Tanu continued to pressurised her (prosecutrix) to do the work and also did not let meet her sister Lakshmi. On 07/08/2010, it was Saturday, Tanu while asking her (prosecutrix) for going to the work, went from the house. Due to her (prosecutrix) bad condition she was sleeping in a room on the second floor and at about 10:00 a.m., Mukesh Khanna came in her room and forcibly after lifting her, brought her to the down room at the first floor and forcibly committed wrong deed (galat kaam) with her and pressed her mouth due to which she could not scream. Mukesh Khanna also threatened her (prosecutrix) if she disclosed this incident to anyone, he will kill her. Mukesh Khanna kept her (prosecutrix) confined for two days. On 09/08/2010, it was Monday. Mukesh Khanna had gone out of house in connection with some work. She (prosecutrix) finding an opportunity 3 of 68 4 FIR No. 280/10 PS - Vijay Vihar went to the house of one Aunty in the neighbourhood and narrated the whole thing/incident to the Aunty. In the night, she remained in the house of Alok Nandini and in the morning Aunty telephoned/called the Police. Mukesh Khanna, his wife Ganga, Tanu and Mukesh Khanna in furtherance of their common intention after inducing and playing deception upon her (prosecutrix), kidnapped her with the intention to get the work done, Mukesh Khanna by committing wrong deed (galat kaam) with her (prosecutrix) and by giving the threatening to her had kept confined her for two days in the room. Legal action be taken against Mukesh Khanna, Ganga and Tanu. She has heard her statement which is correct. On the basis of the statement of the (prosecutrix), on finding that offences u/s 363/365/368/376/342/506/120B IPC appeared to have been committed. Case was got registered and the investigation was carried out. During the course of the investigation, prosecutrix was got medically examined. The sealed exhibits were taken into Police possession. The site plan was prepared at the instance of the prosecutrix. On the pointing out of the prosecutrix, bed sheet cover was recovered and the accused Mukesh Khanna was arrested. Statements of the witnesses were recorded. Disclosure statement of accused Mukesh 4 of 68 5 FIR No. 280/10 PS - Vijay Vihar Khanna was recorded. He was got medically examined and his sealed exhibits were taken into Police possession. Statement of the prosecutrix u/s 164 Cr.P.C. was recorded. Prosecutrix, alongwith her sister Lakshmi were sent to CWC and their bone age XRays were got conducted and the same were taken into Police possession. The sealed exhibits were sent to FSL.
Upon completion of necessary further investigation, challan u/s 363/365/368/376/342/506 IPC was prepared against accused Mukesh Khanna and was sent to the Court for trial.
2. Since the offence under section 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 under section 209 Cr.P.C.
3. Upon committal of the case to the Court of session and after hearing on charge, prima facie a case under section 376/506/342 IPC was made out against the accused Mukesh Khanna. The charge was framed accordingly, which was read over and explained to the accused to which 5 of 68 6 FIR No. 280/10 PS - Vijay Vihar he pleaded not guilty and claimed trial.
4. In support of its case prosecution has produced and examined 13 witnesses. PW1 - HC Geeta, PW2 - Lakshmi, PW3 - Prosecutrix (name withheld being case u/s 376 IPC), PW4 - Lady Constable Santosh, PW5 - Constable Ram Avtar, PW6 - Dr. Sunil Kakkar, Chairman, Standing Committee, Age Determination Board, DDU Hospital, Hari Nagar, New Delhi, PW7 - Dr. Prashant, Sr. Resident, BSA Hospital, Rohini, PW8 - SI Ramesh Thakur, PW9 - Dr. Priyanka, SR, SGM Hospital, PW10 - Ms. Alok Nandini, PW11 - Mr. Tarundeep Mahipal, PW12 - Dr. Megha, Sr. Resident (Gynae), Sanjay Gandhi Memorial Hospital, Mangol Puri, Delhi and PW13 - HC Sukhvir Singh.
5. In brief the witnessography of the prosecution witnesses is as under : PW1 - HC Geeta is the Duty Officer who proved the copy of the FIR Ex. PW1/A and her endorsement Ex. PW1/B on the rukka.
6 of 68 7 FIR No. 280/10 PS - Vijay Vihar PW2 - Lakshmi is the sister of the prosecutrix who deposed that she was told by her sister/prosecutrix (name withheld) that accused Mukesh Khanna had committed rape (galat kaam) with her and also deposed the facts as to when she came to Delhi and where she started living and how she came to know accused Mukesh and where and with whom she was sent for job by accused Mukesh.
PW3 - Prosecutrix is the victim who deposed regarding the incident and proved her complaint made to to the Police Ex. PW3/A signed by her at point 'A' and also proved the seizue memo of the bed sheet which was on the mattress on which she was raped Ex. PW3/B signed by her at point 'A' and also proved her statement recorded u/s 164 Cr.P.C. Ex. PW3/C (carbon copy) [original statement u/s 164 Cr.P.C. Ex. PAdv.3] bearing her thumb impressions at points 'A' and 'B' and proved the arrest memo of the accused Ex. PW3/D and his personal search memo Ex. PW3/E signed by her at point 'B' respectively and identified the bed sheet Ex. P1 and her clothes; one dirty salwar and one dirty underwear Ex. P2 and P3 respectively.
7 of 68 8 FIR No. 280/10 PS - Vijay Vihar PW4 - Lady Constable Santosh who joined investigation on 10/08/2010 with IO SI Ramesh Thakur and deposed on the investigational aspects and also deposed that she got the prosecutrix medically examined and proved the seizure memo of the sealed exhibits which were handed over by the Doctor after the medical examination of the prosecutrix Ex. PW4/A. PW5 - Constable Ram Avtar who joined the investigation on 10/08/2010 with IO SI Ramesh Thakur and deposed on the investigational aspects and besides proving the arrest memo Ex. PW3/D, personal search memo Ex. PW3/E of the accused also proved his disclosure statement Ex. PW5/A. He further deposed that on 06/09/2010 he deposited the sealed pullindas with two sample seals in the FSL after collecting the same from the MHC(M) and after deposition he handed over the receipt acknowledgment and copy of the RC to the MHC(M) and also signed register no. 21.
PW6 - Dr. Sunil Kakkar, Chairman, Standing Committee, 8 of 68 9 FIR No. 280/10 PS - Vijay Vihar Age Determination Board, DDU Hospital, Hari Nagar, New Delhi who deposed that he had forwarded the letter regarding the bone age report in respect of Lakshmi Ex. PW6/A signed by him at point 'A' and deposed regarding the XRay Requisition Form of Lakshmi and deposed that age determination test of Lakshmi was conducted by Dr. Vivek, Senior Radiologist and as per his report, Ex. PW6/B age of Lakshmi was more than 14 years but less than 16 years signed by Dr. Vivek at point 'A' on the report Ex. PW6/B. He also deposed regarding the XRay Requisition Form of the prosecutrix and deposed that age determination test of prosecutrix was conducted by Dr. Vivek, Senior Radiologist and as per his report, Ex. PW6/C age of prosecutrix was more than 20 years but less than 22 years signed by Dr. Vivek at point 'A' on the report Ex. PW6/C. He also deposed regarding the report of medical examination for assessment of age in respect of prosecutrix which contains the physical examination, dental examination and XRay examination of the said patient/prosecutrix and proved the same as Ex. PW6/D signed by Dr. Vivek, Radiologist at point 'A', by Dr. Anita, Dentist at point 'B' and Dr. Uma Physician at point 'C'.
9 of 68 10 FIR No. 280/10 PS - Vijay Vihar PW7 - Dr. Prashant, Sr. Resident, BSA Hospital, Rohini who medically examined accused Mukesh Khanna and opined that there was nothing to suggest that the patient was incapable of performing sexual intercourse vide MLC Ex. PW7/A signed by him at point 'A'.
PW8 - SI Ramesh Thakur who is the Investigating Officer (IO) and deposed on the investigational aspects and proved the DD No. 8A dated 10/08/2010 Ex. PW8/A, his endorsement Ex. PW8/B on the statement of the prosecutrix Ex. PW3/A. Besides proving the other memos as have been proved by PW3 - Prosecutrix, PW4 - Lady Constable Santosh, PW5 - Constable Ram Avtar, PW6 - Dr. Sunil Kakkar, Chairman, Standing Committee, Age Determination Board, DDU Hospital, Hari Nagar, New Delhi also proved the carbon copy of the application for recording the statement u/s 164 Cr.P.C. of the prosecutrix Ex. PW8/C, site plan Ex. PW8/D, seizure memo of the exhibits handed over by the Doctor after the medical examination of the accused Ex. PW8/E and deposed that he collected the FSL result and placed it before the Court and tendered the same in evidence as Ex. PQ & PR and also proved one dirty underwear Ex. P4 and the bed sheet Ex.
10 of 68 11 FIR No. 280/10 PS - Vijay Vihar P1.
PW9 - Dr. Priyanka, SR, SGM Hospital who deposed that on 10/08/2010, patient/prosecutrix was examined by Dr. M. Dass and was referred to Senior Gynae Dr. Sangeeta and on that day, patient/prosecutrix had refused for medical examination and proved the observations of Dr. Sangeeta at point 'X' to 'X' on MLC Ex. PW9/A signed by Dr. Sangeeta at point 'Y' and further deposed that her clothes i.e. salwar and panty were sealed and handed over to accompanying Constable and UTP was advised. She further deposed that the patient/prosecutrix was also examined by Dr. Rajni, SR on 10/08/2010 and proved the observations and examination of Dr. Rajni at point 'Z' to 'Z' on the MLC Ex. PW9/A signed by Dr. Rajni at point 'Q'.
PW10 - Alok Nandini who deposed that she knows accused Mukesh who used to reside one year before today (statement of PW10 was recorded on 17/05/2012) in a tenanted house which was at a distance of 78 houses away from her house. Accused resided there with his wife and some other for about 1½ year. At present, accused is not residing in 11 of 68 12 FIR No. 280/10 PS - Vijay Vihar that locality. On 09/08/2010 in the night at about 9:30 - 10:00 p.m., she was engaged in her household work, one girl named prosecutrix (name withheld) who hailed from Orissa came to her house. She (prosecutrix) was very afraid and perplexed and at about 11:00/11:30 p.m. told her that she (PW10) should not send her out of house that night and next morning, she would go from there. She (PW10) also hails from Orissa. In the night, prosecutrix told her that her sister Laxmi was brought by the wife and her sister, of accused Mukesh from the Village for work and when her sister Laxmi got ill, she also came to Delhi to take her back and was residing with accused Mukesh in his house. Prosecutrix told her that on 07/08/2010, in the morning hours, accused Mukesh had committed rape upon her. She (PW10) felt that it was not good to keep prosecutrix at her home and she also did not want to send her alone. On 10/08/2010, at about 6:00 a.m., she called the PCR and handed over the prosecutrix to the Police who recorded her statement and action was taken. That day, she met the Police and her statement was recorded.
PW11 - Mr. Tarundeep Mahipal who deposed that he came to know through internet that maids were available with Khannaji 12 of 68 13 FIR No. 280/10 PS - Vijay Vihar Enterprises at Shakurpur. He was in the need of maid and hence reached there on 20/06/2010 and there he met a person namely Mukesh Khanna who introduced himself as the owner of Khanna Enterprises running a placement business. He (PW11) paid him Rs. 4,000/ as commission for the maid. The salary of the maid was negotiated as Rs. 2,000/ p.m. Salary of one month i.e. Rs. 2,000/ was given in advance to the said Mukesh Khanna (accused) and he handed him over maid, namely Rukmini of 18 years and about the remaining documents, he (Mukesh Khanna) had promised that he will handover those documents shortly. On 10/08/2010, he (PW11) came to know that the said girl was wanted by PS Vijay Vihar and on that day, he handed over that girl to the Police and his statement was recorded by the Police.
PW12 - Dr. Megha, Sr. Resident (Gynae), Sanjay Gandhi Memorial Hospital, Mangol Puri, Delhi who deposed on the same lines as has been deposed by PW9 - Dr. Priyanka.
PW13 - HC Sukhvir Singh is the MHC(M) who proved the relevant entry of register no. 19 Ex. PW13/A, copy of the road certificate 13 of 68 14 FIR No. 280/10 PS - Vijay Vihar No. 124/21/10 Ex. PW13/B and the copy of the acknowledgment receipt of the FSL Ex. PW13/C. The testimonies of the prosecution witnesses shall be dealt with in detail during the course of appreciation of evidence.
6. It is to be mentioned that as reflected from the order sheet dated 31/07/2012, Ld. Counsel for the accused before the Ld. Predecessor Court has stated no objection and has admitted the original statement u/s 164 Cr.P.C. and proceedings relating thereto without summoning the Ld. Magistrate eg. Application for recording the statement of prosecutrix as Ex. P.Adv.1; proceedings of Magistrate running in two pages as Ex. P.Adv.2; statement of prosecutrix as Ex. P.Adv.3; certificate of Magistrate as Ex. P.Adv.4 and the application of Police for obtaining copy of statement as Ex. P.Adv.5.
7. Statement of accused namely Mukesh Khanna was recorded u/s 313 Cr.P.C wherein he pleaded innocence and false implication and opted not to lead any defence evidence.
14 of 68 15 FIR No. 280/10 PS - Vijay Vihar
8. Ld. Counsel for the accused submitted that there are contradictions in the statement of PW3 - prosecutrix recorded u/s 161 Cr.P.C., u/s 164 Cr.P.C. and the deposition made in the Court. PW3 - prosecutrix in her statement u/s 161 Cr.P.C. stated of her forcefully taken from second floor to first floor and of forcibly doing "galat kaam" and of gagging of her mouth by accused. In the statement u/s 164 Cr.P.C., prosecutrix has stated that the accused came on second floor where she was sleeping and forcefully took her to first floor from second floor in a room and closed the room and thereafter, accused removed her clothes and done "galat kaam" with her. While, in her examinationinchief, prosecutrix has stated that accused came and took her from second floor to first floor and he took in his lap and submitted that these statements of the prosecutrix goes to show that she was a consenting party.
Ld. Counsel for the accused further submitted that PW3 prosecutrix in her examinationinchief stated that accused Mukesh Khanna confined her for two days in his room and after two days accused had gone somewhere outside his house and in her crossexamination prosecutrix admitted that the accused took her in his lap and she asked him as to why he was taking her downstairs. He told her that she is ill 15 of 68 16 FIR No. 280/10 PS - Vijay Vihar and he is taking her to the first floor and she will take rest there. Ld. Counsel for the accused argued that when the accused took the prosecutrix in his lap, the prosecutrix did not oppose because she was a consenting party.
Ld. Counsel for the accused further submitted that PW3 - prosecutrix has also admitted in her crossexamination that she stayed in the house of accused from 04/08/2010 to 08/08/2010 and has also admitted in her crossexamination that there were houses around the house of accused. Ld. Counsel for the accused argued that the prosecutrix had full chance to flee and to call the neighbours for her assistance. Prosecutrix has stated in her crossexamination that the accused did not lock the main door of the stair case and he only bolted it from inside and also admitted that there were windows on the first floor and second floor of the house which could open in the gali if she could open the window she could raise her voice and that could be heard by the nearby residents in the gali. She did not raise her voice nor she had opened the said windows. She did not call anyone from the gali to help her from the windows. Ld. Counsel submitted that this act clearly shows that the prosecutrix was a consenting party.
16 of 68 17 FIR No. 280/10 PS - Vijay Vihar Ld. Counsel for the accused further submitted that PW3 - prosecutrix in her crossexamination stated that accused left house on 09/08/2010 without telling her anything and he did not bolt the door from the outside of the door when he left on 09/08/2010. Ld. Counsel argued that it clearly shows that the prosecutrix was not confined by accused as she was a consenting party.
Ld. Counsel for the accused further submitted that PW3 - prosecutrix in her crossexamination has stated that she had not taken meals during those two days as she was unwell and also not taken medicine. Ld. Counsel argued that the said version of the prosecutrix is not believable because how the person can remain alive by not taking the meals for two days. Ld. Counsel for the accused submitted that PW3 - prosecutrix in her crossexamination has stated that she reached at the house of aunty Alok Nandini, PW10 - at about 5:00 p.m. While PW10 - Alok Nandini has stated in her examinationinchief that prosecutrix reached her house on 09/08/2010 at about 9:30 or 10:00 p.m. Ld. Counsel for the accused further submitted that PW3 - prosecutrix in crossexamination has also admitted that Ganga talked on 09/08/2010 on the phone (walkytalky of Mukesh) Ganga called her and 17 of 68 18 FIR No. 280/10 PS - Vijay Vihar the prosecutrix told her about the incident. Ld. Counsel argued how the prosecutrix says that she was confined by the accused when she was roaming on the first floor and the staircase.
Ld. Counsel for the accused further submitted that there is not any evidence of fresh external injury seen all over body at the time of her examination which clearly shows that the prosecutrix was a consenting party.
Ld. Counsel for the accused further submitted that PW10 - Alok Nandini in her examinationinchief has stated that she (prosecutrix) told her that she (PW10) should not send her out of the house that night and next morning she (prosecutrix) would go from there. She (prosecutrix) also hails from Orissa on 10/08/2010 at about 6:00 a.m., she (PW10) called PCR and handed over the prosecutrix to Police. In her crossexamination PW10 - Alok Nandini admitted that she did not know prosecutrix and her sister prior to 09/08/2010. Ld. Counsel submitted that the suggestion has been given to PW10 - Alok Nandini because she knew well accused and his wife who were running a Placement Agency and because of business rivalry, PW10 - Alok Nandini has taken the benefit of prosecutrix and her false statement and 18 of 68 19 FIR No. 280/10 PS - Vijay Vihar the accused has been falsely implicated by the prosecutrix at the instance of PW10 - Alok Nandini.
Ld. Counsel for the accused further submitted that PW3 - Lakshmi who is the real sister of the prosecutrix has stated that in the house, Ganga, her son, her motherinlaw and her husband, accused Mukesh were living and the house of Ganga and Mukesh was like an office of agency and number of girls used to stay there after being brought from their village and during her crossexamination PW2 has stated that she stayed at the house of accused for about one month prior to her job and no allegation was made by PW2 against the accused for any physical harassment.
Ld. Counsel for the accused further submitted that PW3 - prosecutrix has stated that she was confined for three days in the house of accused. He argued that it is not believable that the Placement Agency which was run from the house of accused and also used as an office. How is it possible that in three days, from 07/08/2010 to evening 09/08/2010 nobody came in the house of the accused.
Ld. Counsel for the accused further submitted that PW8 - SI Ramesh did not make inquiry from the neighbours of the said incident 19 of 68 20 FIR No. 280/10 PS - Vijay Vihar and has stated that when he reached at the house of PW10 - Alok Nandini, she was alone while PW10 - Alok Nandini in her examination inchief has stated that her husband and children were present when the prosecutrix reached her house.
Ld. Counsel for the accused further submitted that in the FSL Report, no hair/nail has been recovered from Ex. 2A i.e. one dirty bed sheet.
Ld. Counsel for the accused further submitted that the prosecution has failed to prove its case beyond reasonable doubt and prayed for the acquittal of the accused on the charges levelled against him.
9. While the Ld. 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.
20 of 68 21 FIR No. 280/10 PS - Vijay Vihar
10. I have heard Sh. S. C. Sroai, Ld. Addl. PP for the State and Sh. N. S. Tomar, Ld. Counsel for the accused and have also carefully perused the entire record.
11. The charge for the offences u/s 376/506/342 IPC against accused Mukesh Khanna is that on 07/08/2010 at 10:00 a.m. at his house situated at C171, Sector - 24, Rohini, Delhi within the jurisdiction of PS
- Vijay Vihar, he had forcibly committed rape on the person of the prosecutrix and secondly, on the aforesaid date, time and place, after the aforesaid act of rape he had criminally intimidated the prosecutrix with intent to cause alarm in her mind and thirdly, after aforesaid rape he had wrongfully confined the prosecutrix for two days at his aforesaid house.
12. It is to be mentioned that as a matter of prudence, in order to avoid any little alteration in the spirit and essence of the depositions of the material witnesses, during the process of appreciation of evidence at some places their part of depositions have been reproduced, in the interest of justice.
21 of 68 22 FIR No. 280/10 PS - Vijay Vihar AGE OF THE PROSECUTRIX
13. PW6 - Dr. Sunil Kakkar, Chairman, Standing Committee, Age Determination Board, DDU Hospital, Hari Nagar, New Delhi has deposed regarding the XRay Requisition Form of the prosecutrix and deposed that age determination test of prosecutrix was conducted by Dr. Vivek, Senior Radiologist and as per his report, Ex. PW6/C age of prosecutrix was more than 20 years but less than 22 years signed by Dr. Vivek at point 'A' on the report Ex. PW6/C. He also deposed regarding the report of medical examination for assessment of age in respect of prosecutrix which contains the physical examination, dental examination and XRay examination of the said patient prosecutrix and proved the same as Ex. PW6/D signed by Dr. Vivek, Radiologist at point 'A', by Dr. Anita, Dentist at point 'B' and Dr. Uma Physician at point 'C'.
It is pertinent to reproduce the relevant part of the examinationinchief of PW6 - Dr. Sunil Kakkar which reads as under : "I have seen XRay requisition form of prosecutrix (name withheld), D/o Masan Muramu OPD No. 309514 dated 13/08/2010. Aforesaid age determination test was conducted by Dr. Vivek, Sr. Radiologist and as per his report, age of prosecutrix (name withheld) was more than 20 years but less than 22 years. Report of Dr. Vivek is now Ex. PW6/C. I identify the signatures of Dr. Vivek at point 'A' on the 22 of 68 23 FIR No. 280/10 PS - Vijay Vihar report. I have seen Dr. Vivek writing and signing during the course of office. I have also seen report of medical examination for assessment of age No. 309514 dated 13/08/2010 vide FIR No. 280/10, PS - Vijay Vihar in respect of prosecutrix (name withheld), D/o Masan Muramo which contains the physical examination, dental examination and XRay examination of the said patient. The said Report is Ex. PW6/D bears the signatures of Dr. Vivek, Radiologist, Dr. Anita, Dentist and Dr. Uma, Physician at points A, B and C. I identify their signatures as I have seen them writing and signing during the course of office."
During his crossexamination he has deposed that : "It is correct that margin of two years is given in maximum and minimum age intervals in the report. It is correct that his report is based upon wrist, elbow, shoulder, pelvis and clavicle test. It is correct that there is every possibility of six months more or less in the estimated age. It is wrong to suggest that I have given this report in connivance with the IO of the case."
On careful perusal and analysis of the testimony of PW6 - Dr. Sunil Kakkar, it is clearly indicated that the age of the prosecutrix was more than 20 years but less than 22 years vide Age Determination Report of the prosecutrix given by Dr. Vivek Ex. PW6/C. Even if margin of two years is given in the maximum and minimum age intervals in the report Ex. PW6/C, the age of the prosecutrix was 18 and above.
In view of above and in the circumstances, it stands established that the age of the prosecutrix was more than 20 years but 23 of 68 24 FIR No. 280/10 PS - Vijay Vihar less than 22 years on the date of the alleged incident on 07/08/2010, thus a major.
MEDICAL EVIDENCE
14. PW9 - Dr. Priyanka, SR, SGM Hospital who deposed that on 10/08/2010, patient/prosecutrix was examined by Dr. M. Dass and was referred to Senior Gynae Dr. Sangeeta and on that day, patient/prosecutrix had refused for medical examination and proved the observations of Dr. Sangeeta at point 'X' to 'X' on MLC Ex. PW9/A signed by Dr. Sangeeta at point 'Y' and further deposed that her clothes i.e. salwar and panty were sealed and handed over to accompanying Constable and UTP was advised and further deposed that she identifies signatures and handwriting of Dr. Sangeeta as she had seen her signing and writing during the course of her duties. Dr. Sangeeta has since left the Hospital. She further deposed that the patient/prosecutrix was also examined by Dr. Rajni, SR on 10/08/2010 and proved the observations and examination of Dr. Rajni at point 'Z' to 'Z' on the MLC Ex. PW9/A signed by Dr. Rajni at point 'Q' and further deposed that she identifies handwriting and signatures of D. Ragni at point 'Q' as she has seen her 24 of 68 25 FIR No. 280/10 PS - Vijay Vihar writing and signing during the curse of service.
During her crossexamination, PW9 - Dr. Priyanka has deposed that she had not examined the patient personally. MLC was not prepared in her presence.
There is nothing in the crossexamination of Dr. Priyanka so as to impeach her creditworthiness. She has proved the medical/gynaecological examination of the prosecutrix as was conducted by Dr. Sangeeta and Dr. Rajni, SR, Gynae and has specifically deposed that she identified the signatures of Dr. Sangeeta and Dr. Rajni, SR, Gyane as she had seen them signing and writing during the course of duties/service.
In view of above and in the circumstances, the medical/gynaecological examination of the prosecutrix stands proved on the record.
VIRILITY OF THE ACCUSED
15. PW7 - Dr. Prashant, Sr. Resident, BSA Hospital, Rohini who medically examined the patient/accused Mukesh Khanna and opined that there was nothing to suggest that the patient/accused Mukesh 25 of 68 26 FIR No. 280/10 PS - Vijay Vihar Khanna was not incapable of performing sexual intercourse vide MLC Ex. PW7/A signed by him at point 'A'.
PW7 - Dr. Prashant was not crossexamined despite grant of opportunity.
In view of above and in the circumstances, it stands proved on the record that accused was not incapable of performing sexual intercourse.
BIOLOGICAL AND SEROLOGICAL EVIDENCE
16. As per FSL Report (Biological) Ex. PQ, the description of articles contained in parcel and result of analysis reads as under : DESCRIPTION OF ARTICLES CONTAINED IN PARCEL Parcel '1' : One sealed cloth parcel sealed with the seal of "SD" containing exhibits '1a', '1b' and '1c' kept in cardboard box, stated to be of accused.
Exhibit '1a' : One dirty underwear.
Exhibit '1b' : Gauze cloth piece having few dark brown stains
described as 'Blood sample'.
Exhibit '1c' : Dark brown foul smelling liquid, kept in vial
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FIR No. 280/10
PS - Vijay Vihar
described as 'Blood sample'.
Parcel '2' : One sealed cloth parcel sealed with the seal
of "SS" containing exhibits '2a' and '2b' stated to be recovered from scene of crime.
Exhibit '2a' : One dirty bed sheet. No hair / nail could be recovered from the exhibit.
Exhibit '2b' : One dirty underwear. No hair / nail could be recovered from the exhibit.
Parcel '3' : One sealed paper envelope sealed with the seal of "SGMH, GNCT, DELHI" containing exhibits '3a'and '3b' stated to be of victim.
Exhibit '3a' : One dirty salwar. Exhibit '3b' : One dirty underwear. Parcel '4' : One sealed cloth parcel sealed with the seal of
"SGMH, GNCT, DELHI" containing exhibit '4', kept in paper, stated to be of victim.
Exhibit '4' : A small bunch of black strands of hair described as 'Pubic hair'.
Parcel '5' : One sealed cloth parcel sealed with the seal of "SGMH, GNCT, DELHI" containing exhibit '5', kept in paper, stated to be of victim.
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FIR No. 280/10
PS - Vijay Vihar
Exhibit '5' : Few dirty nail clippings.
Parcel '6' : One sealed cloth parcel sealed with the seal of
"SGMH, GNCT, DELHI" containing exhibit '6', kept in a plastic tube, stated to be of victim.
Exhibit '6' : One cotton wool swab on plastic stick described as 'Right vulval swab'.
Parcel '7' : One sealed cloth parcel sealed with the seal of "SGMH, GNCT, DELHI" containing exhibit '7', kept in a plastic tube, stated to be of victim.
Exhibit '7' : One cotton wool swab on plastic stick described as 'Right vaginal swab'.
Parcel '8' : One sealed cloth parcel sealed with the seal of "SGMH, GNCT, DELHI" containing exhibit '8', kept in a plastic tube, stated to be of victim.
Exhibit '8' : One cotton wool swab on plastic stick described as 'Vaginal smear'.
Parcel '9' : One sealed cloth parcel sealed with the seal of "SGMH, GNCT, DELHI" containing exhibit '9', kept in a plastic tube, stated to be of victim.
Exhibit '9' : One cotton wool swab on plastic stick described as 'Anterior vaginal swab'.
28 of 68 29 FIR No. 280/10 PS - Vijay Vihar Parcel '10' : One sealed cloth parcel sealed with the seal of "SGMH, GNCT, DELHI" containing exhibit '10', kept in a plastic tube, stated to be of victim.
Exhibit '10' : One cotton wool swab on plastic stick described as 'Left vulval swab'.
Parcel '11' : One sealed cloth parcel sealed with the seal of "SGMH, GNCT, DELHI" containing exhibit '11', kept in a plastic tube, stated to be of victim.
Exhibit '11' : One cotton wool swab on plastic stick described as 'Lateral Vaginal swab'.
Parcel '12' : One sealed cloth parcel sealed with the seal of "SGMH, GNCT, DELHI" containing exhibit '12', kept in a plastic tube, stated to be of victim.
Exhibit '12' : One cotton wool swab on plastic stick described as 'nail scrubbing'.
Parcel '13' : One sealed cloth parcel sealed with the seal of "SGMH, GNCT, DELHI" containing exhibit '13', kept in a plastic tube, stated to be of victim.
Exhibit '13' : One cotton wool swab on plastic stick described as 'Posterior Vaginal swab'.
29 of 68 30 FIR No. 280/10 PS - Vijay Vihar RESULT OF ANALYSIS
1. Blood was detected on exhibits '1b', '1c', '3a', '3b', '4', '7', '8', '9', '11' and '13'.
2. Blood could not be detected on exhibits '1a', '2a', '2b', '5', '6', '10' and '12'.
3. Human semen was detected on exhibits '1a', '2b', '3a' and '3b'.
4. Semen could not be detected on exhibits '2a', '4', '5', '6', '7', '8', '9', '10', '11', '12' and '13'.
5. Report of serological analysis in original is attached herewith. NOTE : Remnants of the exhibits have been sealed with the seal of 'S. Nn FSL DELHI'.
The serological report Ex. PR reads as under: Exhibits Species of origin ABO Grouping/Remarks Blood Stains: Human 'A' Group '1b' Gauze cloth piece '1c' Blood Sample Sample putrefied hence no opinion '3a' Salwar Human Inconclusive '3b' Underwear Human Inconclusive 30 of 68 31 FIR No. 280/10 PS - Vijay Vihar '4' Pubic hair Human No reaction '7' Cotton wool swab Human No reaction '8' Cotton wool swab Human No reaction '9' Cotton wool swab Human No reaction '11' Cotton wool swab Human No reaction '13' Cotton wool swab Human No reaction Semen Stains: No reaction '1a' Underwear '2b' Underwear Inconclusive '3a' Salwar Inconclusive '3b' Underwear Inconclusive On careful perusal and analysis of the biological evidence on record, it clearly shows that blood was detected on exhibit 1b (Gauze cloth piece of accused), exhibit 1c (Blood Sample of accused), exhibit 3a (Salwar of prosecutrix), exhibit 3b (Underwear of prosecutrix), exhibit 4 (Pubic hair of prosecutrix), exhibit 7 (Cotton wool swab of prosecutrix), exhibit 8 (Cotton wool swab of prosecutrix), exhibit 9 (Cotton wool swab of prosecutrix), exhibit 11 (Cotton wool swab of prosecutrix) and exhibit 13 (Cotton wool swab of prosecutrix) and Human Semen was detected. on exhibit 1a (One dirty underwear of accused), exhibit 2b (One 31 of 68 32 FIR No. 280/10 PS - Vijay Vihar dirty underwear recovered from the scene of crime), exhibit 3a (Salwar of prosecutrix), exhibit 3b (Underwear of prosecutrix).
On a conjoint reading of the medical evidence, the gynaecological examination from portion 'Z' to 'Z' on MLC Ex. PW 9/A of prosecutrix together with the MLC of accused Mukesh Khanna Ex. PW7/A. In the light of the biological and serological evidence detailed hereinabove it clearly indicates the taking place of recent sexual intercourse activity.
In the circumstances, it stands clearly established on the record that recent sexual intercourse activity has taken place in the instant case.
As per biological report Ex. PQ with regard to the description of the articles contained in the parcels, it is noticed that the parcel no. 1 belong to the accused which was seized vide seizure memo Ex. PW8/B, parcel no. 2 contained the articles which were recovered from the scene of crime vide seizure memo Ex. PW3/B, the parcel nos. 3 to 13 belong to the prosecutrix which were seized vide seizure memo Ex. PW4/A. As per the biological report, prosecution has discharged its 32 of 68 33 FIR No. 280/10 PS - Vijay Vihar initial burden of proving the presence of human semen on exhibit 1a (One dirty underwear of accused seized vide seizure memo Ex. PW8/B), exhibit 2b (One dirty underwear recovered from the scene of crime vide seizure memo Ex. PW3/B), exhibit 3a (Salwar of prosecutrix seized vide seizure memo Ex. PW4/A), exhibit 3b (Underwear of prosecutrix seized vide seizure memo Ex. PW4/A). Accused was under an obligation to explain how and under what circumstances, the human semen came to present on the said exhibits '1a' '2b', '3a' and '3b'.
The absence of such an explanation both in the section 313 Cr.P.C. statement of the accused and his omission to lead any evidence in this regard and his complete denial becomes an additional link in the prosecution case.
17. Now let the testimonies of PW3 - prosecutrix, PW2 - Lakshmi, sister of the prosecutrix and PW10 - Alok Nandini be perused and analyzed.
33 of 68 34 FIR No. 280/10 PS - Vijay Vihar PW3 - prosecutrix in her examinationinchief recorded on 17/10/2011 has deposed which is reproduced and reads as under : "My parents are not alive. Family of chacha is residing in village. My sister Lakshmi was brought to Delhi by Tanu for job on 21st May, last year. At that time, my sister of 15 years of age. After about two months, Tanu came to Village and told me that my sister Lakshmi was unwell and also asked me to bring Lakshmi back to village from Delhi. I came to Delhi with Tanu on 04/08/2010 and started from Orissa on 03/08/2010. I reached the house of accused Mukesh Khanna, present in Court, with Tanu. At that time, Ganga was at Orissa. When I was at Orissa, Ganga also told me that Lakshmi was not well and asked me to go to Delhi and to bring Lakshmi back. After coming to Delhi, I felt ill. When I came to Delhi, I inquired about Lakshmi from Tanu and accused Mukesh and also asked them that I wanted to talk to Lakshmi. Accused Mukesh Khanna had informed me that Lakshmi had gone for roaming and when I asked him to allow me to speak to Lakshmi on mobile, accused told me that amount of roaming charges would be deducted from his mobile and did not allow me to call my sister. I inquired from him as to when she would return and he assured me that Lakshmi would return on 12/08/2010. I told accused that I would not stay there till 12th and I would return to my home but I was not having money at that time. Accused told me that I should do work for some days and after getting money of myself and of my sister, would return to village with my sister and by that time Lakshmi would also return. I told him that I will not do the job and I will return if I will have some money. Accused was threatening me to forcibly send me on job.
On 07/08/2010, Tanu had left the house of accused for her work. At that time I was sleeping. She knew that I was unwell and even 34 of 68 35 FIR No. 280/10 PS - Vijay Vihar then, she had left. At that time, nobody was at home. One more boy who was there at the house had gone with Tanu. I was sleeping at the second floor of the house. At about 10:00 a.m., accused Mukesh Khanna came and took me to the first floor at the first floor. He took me in his lap. One mattress was lying on the floor in that room. He layed me on that and removed my clothes and committed rape with me. He gaged my mouth. Accused threatened me that if I would disclosed this before anyone, he would kill me. Accused confined me for two days in his room. After two days, accused had gone somewhere outside his house. I took a chance and went to the house of nearby aunty. I told her about the incident. I stayed at her house in the night. Next morning, Police was called by that aunty. Police reached there. I was brought to Police Station. My medical examination was got done. My statement was recorded in the Police Station. Statement is now Ex. PW3/A bears my signatures at point 'A'."
PW3 - Prosecutrix in her examinationinchief has further deposed that her salwar and underwear were seized in the hospital. Police had also seized one bed sheet which was on the mattress on which she was raped vide memo Ex. PW3/A signed by her at point 'A'. She was sent to Nari Niketan and deposed that her statement u/s 164 Cr.P.C. was also recorded Ex. PW3/C (carbon copy) [original statement u/s 164 Cr.P.C. Ex. P.Adv.3] bearing her thumb impressions at points 'A' and 'B; and also proved the arrest memo of accused Ex. PW3/D and his personal 35 of 68 36 FIR No. 280/10 PS - Vijay Vihar search memo Ex. PW3/E signed by her at points 'B' and identified the bed sheet Ex. P1 and her clothes; one dirty salwar and one dirty underwear Ex. P2 and P3 respectively.
From the aforesaid narration of PW3 - prosecutrix, it is clear that her parents are not alive. Family of chacha is residing in village. Her sister Lakshmi was brought to Delhi by Tanu for job on 21st May, last year. At that time, her sister was 15 years of age (corroborated by bone age report of Lakshmi Ex. PW6/B). After about two months, Tanu came to Village and told her that her sister Lakshmi was unwell and also asked her to bring Lakshmi back to village from Delhi. She came to Delhi with Tanu on 04/08/2010 and started from Orissa on 03/08/2010. She reached the house of accused Mukesh Khanna, present in Court, with Tanu. At that time, Ganga was at Orissa. When she was at Orissa, Ganga also told her that Lakshmi was not well and asked her to go to Delhi and to bring Lakshmi back. After coming to Delhi, she fell ill. When she came to Delhi, she inquired about Lakshmi from Tanu and accused Mukesh and also asked them that she wanted to talk to Lakshmi. Accused Mukesh Khanna had informed her that Lakshmi had gone for 36 of 68 37 FIR No. 280/10 PS - Vijay Vihar roaming (ghumne) and when she asked him to allow her to speak to Lakshmi on mobile, accused told her that amount of roaming charges would be deducted from his mobile and did not allow her to call her sister. She inquired from him as to when she would return and he assured her that Lakshmi would return on 12/08/2010. She told accused that she would not stay there till 12th and would have returned to her home but she was not having money at that time. Accused told her that she should do work for some days and after getting money of herself and of her sister, would return to village with her sister and by that time Lakshmi would also return. She told him that she will not do the job and she will return if she will have some money. Accused was threatening her to forcibly send her on job. On 07/08/2010, Tanu had left the house of accused for her work. At that time she was sleeping. She (Tanu) knew that she (prosecutrix) was unwell and even then, she (Tanu) had left. At that time, nobody was at home. One more boy who was there at the house had gone with Tanu. She (prosecutrix) was sleeping at the second floor of the house. At about 10:00 a.m., accused Mukesh Khanna came and took her to the first floor at the first floor. He took her in his lap. One mattress was lying on the floor in that room. He laid her on 37 of 68 38 FIR No. 280/10 PS - Vijay Vihar that and removed her clothes and committed rape with her. He gagged her mouth. Accused threatened her that if she would disclose this before anyone, he would kill her. Accused confined her for two days in his room. After two days, accused had gone somewhere outside his house. She took a chance and went to the house of nearby aunty. She told her about the incident. She stayed at her house in the night. Next morning, Police was called by that aunty. Police reached there. She was brought to Police Station. Her medical examination was got done. Her statement was recorded in the Police Station Ex. PW3/A bearing her signature at point 'A'.
PW3 - prosecutrix during her crossexamination negated the suggestions that she had physical relations with accused with her consent and willingness or that after 07/08/2010, for two days, she stayed at the house of accused out of her own free will or that accused (is) in the charges of rape as he was not paying earnings of her sister Lakshmi and for that reason, she had alleged rape against him or that aunty wanted to have partnership in the placement agency run by accused and on refusal by accused she (aunty) got agitated and used her 38 of 68 39 FIR No. 280/10 PS - Vijay Vihar to lodge the false report against the accused.
Inspite of incisive crossexamination nothing material has been brought out on the record so as to impeach her creditworthiness.
Moreover, the careful analysis of the suggestions put to PW3
- Prosecutrix as detailed hereinabove during her crossexamination also indicate that the fact of making physical relations with PW3 Prosecutrix has not been disputed by the accused. The testimony of PW3 - prosecutrix on perusal and analysis is found to be clear, natural, cogent, convincing, trustworthy and inspires confidence. In the witness box she has withstood the test of crossexamination and her testimony is consistent throughout. The version of this witness on the core spectrum of the crime has remained intact. There is nothing in her statement to suggest that she had any animus against the accused to falsely implicate him in the case.
The testimony of PW3 - Prosecutrix has also been corroborated by the medical evidence and the biological and serological evidence as discussed hereinbefore.
39 of 68 40 FIR No. 280/10 PS - Vijay Vihar The testimony of PW3 - Prosecutrix is also found to be in consonance with her statement Ex. PW3/A made to the Police as well as her statement recorded u/s 164 Cr.P.C. Ex. PW3/C (carbon copy) [original statement u/s 164 Cr.P.C. Ex. P.Adv.3] The testimony of PW3 Prosecutrix is also found to be corroborated by the testimony of PW2 - Lakshmi, her sister and PW10 - Alok Nandini to whom PW3 Prosecutrix disclosed the facts relating to the crime shortly after the incident being relevant u/s 6 and 8 of the Indian Evidence Act, 1872.
PW2 - Lakshmi in her examinationinchief recorded on 17/10/2011 has deposed that last year, on 21st day, she came to Delhi for job. She was brought to Delhi by one Tanu, sister of Ganga. Tanu and Ganga were living in their village. At that time, when she was brought to Delhi by Tanu, Ganga was already in Delhi. Tanu brought her to Delhi on the pretext that she would get her a good job. When she came to Delhi, she started living at the house of Ganga. In that house, Ganga, her son, her motherinlaw, her husband Mukesh were living. Tanu usually 40 of 68 41 FIR No. 280/10 PS - Vijay Vihar returns after dropping the girls which she brought from village for work. Whenever Tanu used to come to Delhi, she used to stay at the house of Ganga. She was employed at house at Bahadurgarh. She was sent by Mukesh and Ganga with the owner of the house of Bahadurgarh for job. Ganga and Mukesh used to bring girls from village and used to place them under employment at the houses. House of Ganga and Mukesh are like an office of agency and number of girls used to stay there, after they brought from their villages. She was called to the Police Station by the Police. Owner of the house of Bahadurgarh had brought her to the Police Station. Her sister prosecutrix (name withheld) was present int he Police Station. She met with her. She was also told by the prosecutrix (name withheld) that accused Mukesh Khanna had committed rape (galat kaam) with her.
On the leading questions put by the Ld. Addl. PP for the State she further deposed that she was brought to Delhi by Ganga and Ranu on 21/05/2010 and further deposed that the placement agency which used to be run by accused Mukesh and his wife was Khannaji Enterprises and its office was at C171, J. J. Colony, Sector - 24, Rohini and further deposed that she failed to mention these facts earlier as due 41 of 68 42 FIR No. 280/10 PS - Vijay Vihar to lapse of time.
During her crossexamination PW2 - Lakshmi has deposed that she was told by her sister about these facts (that accused Mukesh Khanna committed rape (galat kaam) with her) at the Police Station. However, she (PW2 - Lakshmi) was not unwell. Prosecutrix (name withheld) was brought by Tanu on the pretext that prosecutrix (name withheld) would return with herself (PW2 - Lakshmi) and Tanu would get job at Delhi. From the Police Station, they were taken to Hospital and from the Hospital, they were taken to place where many girls were living. She does not know where was that place. Police had taken them to that place. They remained in the girls hostel for about 34 months and after that they returned to Orissa. They were dropped at Orissa by the Police.
PW10 - Alok Nandini who deposed that she knows accused Mukesh who used to reside one year before today (statement of PW10 was recorded on 17/05/2012) in a tenanted house which was at a distance of 78 houses away from her house. Accused resided there with his wife and some other for about 1½ year. At present, accused is not residing in 42 of 68 43 FIR No. 280/10 PS - Vijay Vihar that locality. On 09/08/2010 in the night at about 9:30 - 10:00 p.m., she was engaged in her household work, one girl named prosecutrix (name withheld) who hailed from Orissa came to her house. She (prosecutrix) was very afraid and perplexed and at about 11:00/11:30 p.m. told her that she (PW10) should not send her out of house that night and next morning, she would go from there. She (PW10) also hails from Orissa. In the night, prosecutrix told her that her sister Laxmi was brought by the wife and her sister, of accused Mukesh from the Village for work and when her sister Laxmi got ill, she also came to Delhi to take her back and was residing with accused Mukesh in his house. Prosecutrix told her that on 07/08/2010, in the morning hours, accused Mukesh had committed rape upon her. She (PW10) felt that it was not good to keep prosecutrix at her home and she also did not want to send her alone. On 10/08/2010, at about 6:00 a.m., she called the PCR and handed over the prosecutrix to the Police who recorded her statement and action was taken. That day, she met the Police and her statement was recorded.
During her crossexamination PW10 - Alok Nandini negated the suggestions that she knew that accused Mukesh Khanna used to run the placement agency or that she had offered him partnership or 43 of 68 44 FIR No. 280/10 PS - Vijay Vihar that on his refusal, she had made false case against him or that prosecutrix (name withheld) was also from Orissa and for that reason, she had tutored her as per her (PW10) wishes and made her (prosecutrix (name withheld)) to depose against accused or that she had conversed with prosecutrix (name withheld) in their mother tongue and fabricated and concocted false story against accused or that she is deposing falsely.
Inspite of incisive crossexamination of PW2 - Lakshmi and PW10 - Alok Nandini nothing material has been brought out on the record so as to impeach their creditworthiness. In the witness box they have withstood the rigors of crossexamination without being shaken. Their testimonies on analysis are found to be natural, clear, cogent, reliable, inspiring confidence and having a ring of truth. There is nothing in their statements to suggest that they had any animus against the accused to falsely implicate him in the case.
18. While analysing the testimony of PW3 - Prosecutrix and PW2 - Lakshmi, her sister and PW10 - Alok Nandini as discussed here inabove inspite of incisive crossexamination nothing has come out in the statements of PW3 - Prosecutrix PW2 - Lakshmi and PW10 - Alok 44 of 68 45 FIR No. 280/10 PS - Vijay Vihar Nandini which may throw even a slightest doubt on the prosecution version of the incident. Though the suggestions by the defence to PW3 - Prosecutrix that she had physical relations with accused with her consent and willingness or that after 07/08/2010, for two days, she stayed at the house of accused out of her own free will or that accused (is) in the charges of rape as he was not paying earnings of her sister Lakshmi and for that reason, she had alleged rape against him or that aunty wanted to have partnership in the placement agency run by accused and on refusal by accused she got agitated and used her to lodge the false report against the accused and the suggestions to PW10 - Alok Nandini that she knew that accused Mukesh Khanna used to run the placement agency or that she had offered him partnership or that on his refusal, she had made false case against him or that prosecutrix (name withheld) was also from Orissa and for that reason, she had tutored her as per her (PW10) wishes and made her (prosecutrix (name withheld)) to depose against accused or that she had conversed with prosecutrix (name withheld) in their mother tongue and fabricated and concocted false story against accused or that she is deposing falsely were put, which were negated by PW3 - Prosecutrix and PW10 - Alok Nandini but the 45 of 68 46 FIR No. 280/10 PS - Vijay Vihar 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 has been falsely implicated because of animosity.
19. It is well settled that rape, is crime and not a medical condition. Rape is a legal term and not a diagnosis to be made by the medical officer treating the victim.
It is to be noticed that the opinion expressed by Modi in Medical jurisprudence and Toxicology (Twenty First Edition) at page 369 which reads as : "Thus to constitute the offence of rape it is not necessary that there should be complete penetration of penis with emission of semen and rupture of hymen. Partial penetration of the penis within the labia majora or the vulva or pudenda with or without emission of semen or even an attempt at penetration is quite possible to commit legally the offence of rape without producing any injury to the genitals or leaving any seminal stains. In such a case the medical officer should mention the negative facts in his report, but should not give his opinion that no rape had been committed. Rape, is crime and not a medical condition.
46 of 68 47 FIR No. 280/10 PS - Vijay Vihar 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 PW3 - Prosecutrix in the light of medical evidence, biological and serological evidence, gynaecological examination from portion Z to Z on MLC Ex. PW9/A of the prosecutrix together with the MLC of accused Mukesh Khanna Ex.
47 of 68 48 FIR No. 280/10 PS - Vijay Vihar PW7/A, as discussed hereinbefore, the act of performing of recent sexual intercourse activity by complete penetration of the penis with emission of semen or by partial penetration of the penis with emission of semen, within the labia majora or the vulva or pudenda stands proved.
In the circumstances, it stands clearly established on the record, of the performance of the act of sexual intercourse by the accused Mukesh Khanna with PW3 - Prosecutrix without her consent.
20. Ld. Counsel for the accused submitted that there are contradictions in the statement of PW3 - prosecutrix recorded u/s 161 Cr.P.C., u/s 164 Cr.P.C. and the deposition made in the Court. PW3 - prosecutrix in her statement u/s 161 Cr.P.C. stated of her forcefully taken from second floor to first floor and of forcibly doing "galat kaam" and of gagging of her mouth by accused. In the statement u/s 164 Cr.P.C., prosecutrix has stated that the accused came on second floor where she was sleeping and forcefully took her to first floor from second floor in a room and closed the room and thereafter, accused removed her clothes and done "galat kaam" with her. While, in her examinationinchief, 48 of 68 49 FIR No. 280/10 PS - Vijay Vihar prosecutrix has stated that accused came and took her from second floor to first floor and he took in his lap and submitted that these statements of the prosecutrix goes to show that she was a consenting party. Ld. Counsel for the accused further submitted that PW3 prosecutrix in her crossexamination prosecutrix admitted that the accused took her in his lap and she asked him as to why he was taking her downstairs. He told her that she is ill and he is taking her to the first floor and she will take rest there. Ld. Counsel for the accused argued that when the accused took the prosecutrix in his lap, the prosecutrix did not oppose because she was a consenting party.
I have carefully perused and analysed the evidence on record.
As it itself is indicated from the said submissions of Ld. Counsel for accused that as to what has been deposed by PW3 - prosecutrix in her examinationinchief is totally in consonance as to what she stated in her statement u/s 164 Cr.P.C. Ex. PW3/C (also Ex. P.Adv.3) It is pertinent to reproduce the relevant part of examination inchief of PW3 - prosecutrix which reads as under : 49 of 68 50 FIR No. 280/10 PS - Vijay Vihar "I was sleeping at the second floor of the house. At about 10:00 a.m., accused Mukesh Khanna came and took me to the first floor at the first floor. He took me in his lap. One mattress was lying on the floor in that room. He lied me on that and removed my clothes and committed rape with me. He gaged my mouth. Accused threatened me that if I would disclosed this before anyone, he would kill me."
There is nothing in her crossexamination so as to impeach her creditworthiness. Further if the testimony of PW3 - prosecutrix in the estimation of Ld. Counsel for accused was at variance to her statement u/s 161 Cr.P.C., then it was for him to get it contradicted. For such lapse accused is to blame himself and none else. Moreover, in case "Bharwada Bhoginbhai Jirjibhai Vs. State of Gujrat" (1983), 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 which so often has an element of surprise. The mental faculties therefore cannot be expected to be attuned to absorb the details.
50 of 68 51 FIR No. 280/10 PS - Vijay Vihar 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.
Needless to state the testimony of a witness is to be read in its totality.
From the testimony of PW3 - prosecutrix it is nowhere been indicated that when accused took her in his lap to first floor, she became the consenting party. PW3 - prosecutix has clearly and specifically deposed that she was unwell and sleeping at second floor and when she asked from accused as to why she is being taken to first floor he falsely pretended and told a lie that he is taking her to first floor where she will take rest there but in fact he brought the prosecutrix to first floor to commit rape and brought her in his lap as she was unwell and at first floor committed rape upon her after laying her on the mattress after removing her clothes and had also threatened her not to disclose the 51 of 68 52 FIR No. 280/10 PS - Vijay Vihar incident to anyone otherwise he would kill her. In the circumstances it does no lie in the mouth of the accused to utter that she was a consenting party.
In view of above and in the circumstances, there is no substance in the plea so raised by the Ld. Counsel for the accused.
21. Ld. Counsel for the accused submitted that PW3 - prosecutrix has also admitted in her crossexamination that she stayed in the house of accused from 04/08/2010 to 08/08/2010 and has also admitted in her crossexamination that there were houses around the house of accused. Ld. Counsel for the accused argued that the prosecutrix had full chance to flee and to call the neighbours for her assistance. Prosecutrix has stated in her crossexamination that the accused did not lock the main door of the stair case and he only bolted it from inside and also admitted that there were windows on the first floor and second floor of the house which could open in the gali if she could open the window she could raise her voice and that could be heard by the nearby residents in the gali. She did not raise her voice nor she had opened the said windows. She did not call anyone from the gali to help 52 of 68 53 FIR No. 280/10 PS - Vijay Vihar her from the windows. Ld. Counsel submitted that this act clearly shows that the prosecutrix was a consenting party. Ld. Counsel for the accused further submitted that PW3 - prosecutrix in her crossexamination stated that accused left house on 09/08/2010 without telling her anything and he did not bolt the door from the outside of the door when he left on 09/08/2010. Ld. Counsel argued that it clearly shows that the prosecutrix was not confined by accused as she was a consenting party.
I have carefully perused and analysed the evidence on record.
PW3 - prosecutrix in her examinationinchief has categorically deposed that she was unwell. After the committal of rape accused had threatened her not to disclose the incident to anyone otherwise he would kill her. During her crossexamination she has specifically deposed that her condition was bad at that time she could not even yell properly. On the day of incident and throughout the night, accused remained present in the house.
The relevant part of crossexamination of PW3 - prosecutrix reads as under : "My condition was bad at that time. I could not even yell properly. Accused locked me inside the staircase of first floor and I 53 of 68 54 FIR No. 280/10 PS - Vijay Vihar could go to first floor and second floor of the house. On the day of incident and throughout the night, accused remained present in the house. Accused remained at the house even during the day hours on 08/08/2010 and in the evening, he left the house"
In such a bad condition of the prosecutrix, threatening of the accused to prosecutrix to kill for the disclosure of the incident to anyone and the guarding of the house by the accused throughout the period, how it could be expected that she could gather the courage to open the windows and to call or inform any outsider.
In the circumstances, there is no substance in the plea so raised by the Ld. Counsel for the accused.
22. Ld. Counsel for the accused submitted that PW3 - prosecutrix in her crossexamination has stated that she had not taken meals during those two days as she was unwell and also not taken medicine. Ld. Counsel argued that the said version of the prosecutrix is not believable because how the person can remain alive by not taking the meals for two days.
I have carefully perused and analysed the evidence on record.
54 of 68 55 FIR No. 280/10 PS - Vijay Vihar PW3 - prosecutrix during her crossexamination has deposed that : "I did not have my meals during those two days as I was unwell. I was not taking medicines"
From above it is clearly indicated that PW3 - prosecutrix has explained the reasons for not taking the meals and medicines. Where is the question of disbelieving the said part of testimony of prosecutrix. No doubt, food and medicine is necessary for life, but sight cannot be lost of the fact that the prosecutrix who was running unwell, upon him a crime of grave nature has been committed leaving a traumatic and humiliating impression on her conscience offending her selfesteem and dignity who has been put under threat to kill on disclosure of incident to anyone, in the circumstances the conduct of the prosecutrix not to feel hunger and necessity to take medicine does not appear to be unnatural when life may be appearing a hell to her.
In the circumstances, there is no substance in the plea so raised by the Ld. Counsel for the accused.
23. Ld. Counsel for the accused submitted that PW3 - prosecutrix in her crossexamination has stated that she reached at the
55 of 68 56 FIR No. 280/10 PS - Vijay Vihar house of aunty Alok Nandini, PW10 - at about 5:00 p.m. While PW10 - Alok Nandini has stated in her examinationinchief that prosecutrix reached her house on 09/08/2010 at about 9:30 or 10:00 p.m. I have carefully perused and analysed the evidence on record.
There appears to be time difference in the testimony of said PWs of the reaching of PW3 - prosecutrix at the house of PW10 - Alok Nandini but it does not reflect upon the probative value of statement of PW3 - prosecutrix on material and relevant aspects. It is merely an inconsistency on the fringe without materially affecting the credibility of the evidence. Much importance cannot be attached to minor discrepancies. There are bound to be some discrepancies in the narration of certain witnesses when they speak out details.
In case "Bharwada Bhoginbhai Jirjibhai Vs. State of Gujrat" (1983), 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
56 of 68 57 FIR No. 280/10 PS - Vijay Vihar witness is overtaken by events. The witness could not have anticipated the occurrence which so often has an element of surprise. The mental faculties therefore cannot be expected to be attuned to absorb the details.
The Hon'ble Supreme Court of India in case Leela Ram Vs. State of Haryana (1999) 9 SCC 525 has observed that there are bound to be some discrepancies in the narration of certain witnesses when they speak out details. The corroboration of evidence with mathematical niceties cannot be expected in criminal cases. Minor embellishments, there may be, but variations by reasons therefore should not render the 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 : 57 of 68 58 FIR No. 280/10 PS - Vijay Vihar "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].
24. Ld. Counsel for the accused submitted that PW3 - prosecutrix in crossexamination has also admitted that Ganga talked on 58 of 68 59 FIR No. 280/10 PS - Vijay Vihar 09/08/2010 on the phone (walkytalky of Mukesh) Ganga called her and the prosecutrix told her about the incident. Ld. Counsel argued how the prosecutrix says that she was confined by the accused when she was roaming on the first floor and the staircase.
I have carefully perused and analysed the evidence on record.
PW3 - prosecutrix in her crossexamination has deposed : "Ganga talked to me on 09/08/2010 on the phone (walky talky) of Mukesh. She called me. I told her about the incident. She told me to go to the house of aunty of Orissa and to stay there till Ganga returns from the village."
It is also to be noticed, PW3 - prosecutrix in cross examination has also deposed that : "Accused left house on 09/08/2010 without telling me anything".
On a conjoint reading of both the said parts of testimony of PW3 - prosecutrix, it is clearly indicated that on 09/08/2010, accused Mukesh had left the house. Finding an opportunity, PW3 - prosecutrix attended the call on phone (walkytalky) made by Ganga, to whom she (prosecutrix) told about the incident who told her (prosecutrix) to go to 59 of 68 60 FIR No. 280/10 PS - Vijay Vihar the house of aunty of Orissa and to stay there till she (Ganga) returns from the village.
Had PW3 - prosecutrix not been in wrongful confinement then she would not have been advised by Ganga to go to the house of aunty of Orissa and to stay there till she (Ganga) returns from the village.
In the circumstances, there is no substance in the plea so raised by the Ld. Counsel for the accused.
25. Ld. Counsel for the accused submitted that there is not any evidence of fresh external injury seen all over body at the time of her examination which clearly shows that the prosecutrix was a consenting party.
I have carefully perused and analysed the evidence on record.
PW3 - prosecutrix has specifically deposed in her examinationinchief that she was unwell. Her condition was so bad, as has been discussed hereinbefore, that she was taken in lap by the accused to the room at first floor, whereupon her rape was committed by 60 of 68 61 FIR No. 280/10 PS - Vijay Vihar accused after removing her clothes and her mouth was also gagged.
From such a weak, feeble, unwell prosecutrix what struggle can be expected to ward off the lustful attack of the accused.
In the circumstances, there is no substance in the plea so raised by the Ld. Counsel for the accused.
26. Ld. Counsel submitted that the suggestion has been given to PW10 - Alok Nandini because she knew well accused and his wife who were running a Placement Agency and because of business rivalry, PW10 - Alok Nandini has taken the benefit of prosecutrix and her false statement and the accused has been falsely implicated by the prosecutrix at the instance of PW10 - Alok Nandini.
I have carefully perused and analysed the evidence on the record.
At the outset, it is to be mentioned that Ld. Counsel for accused has not explained the nature and type of business rivalry. Undisputably, no evidence in this regard has been led and proved on the record by the accused.
During her crossexamination PW10 - Alok Nandini has specifically deposed that : 61 of 68 62 FIR No. 280/10 PS - Vijay Vihar "Wife of Mukesh was also from Orissa and we used to have visit house of each other occasionally. Wife of accused used to come to grind Masalas at my house. I do not know as to what work accused and his wife used to do. I never made inquiries from Ganga about the job of her husband"
During her crossexamination PW10 - Alok Nandini negated the suggestions that she knew that accused Mukesh Khanna used to run the placement agency or that she had offered him partnership or that on his refusal, she had made false case against him or that prosecutrix (name withheld) was also from Orissa and for that reason, she had tutored her as per her (PW10) wishes and made her (prosecutrix (name withheld)) to depose against accused or that she had conversed with prosecutrix (name withheld) in their mother tongue and fabricated and concocted false story against accused or that she is deposing falsely.
From above, it is to be noticed that the accused has taken the defence that for the refusal of offer of partnership of PW10 - Alok Nandini by him (Accused Mukesh Khanna) she (PW10 - Alok Nandini) has made a false case against him and by tutoring PW3 - prosecutrix had made her (PW3 - prosecutrix) to depose against the accused.
But the sight cannot be lost of the facts, which have been suggested to PW3 - prosecutrix during her crossexamination which she
62 of 68 63 FIR No. 280/10 PS - Vijay Vihar (PW3 - prosecutrix) negated.
The relevant part of crossexamination of PW3 - prosecutrix reads as under : "It is wrong to suggest that I had physical relations with accused with my consent and willingness."
"It is wrong to suggest that accused (is) in the charges of rape as he was not paying earnings of my sister Lakshmi and for that reason, I had alleged rape against him."
From above, it is clearly indicated that accused has churned out/propounded three different theories in one breath and has made a futile attempt in order to save his skin from clutches of law.
FIRST THEORY is of "False implication by PW10 - Alok Nandini due to spurning of her offer of partnership in business by accused and of her tutoring of PW3 - prosecutrix to depose against him."
SECOND THEORY is of "Making of physical relations by PW3 - prosecutrix with accused with her consent and willingness"
And THIRD THEORY is of "False implication by PW3 - prosecutrix for nonpayment of earnings of her sister Lakshmi by
63 of 68 64 FIR No. 280/10 PS - Vijay Vihar accused".
In view of clear, cogent and convincing evidence on the record the said theories so propounded by the accused falls flat to ground.
In the circumstances, there is no substance in the plea so raised by the Ld. Counsel for the accused.
27. Ld. Counsel for the accused submitted that PW3 - prosecutrix has stated that she was confined for three days in the house of accused. He argued that it is not believable that the Placement Agency which was run from the house of accused and also used as an office. How is it possible that in three days, from 07/08/2010 to evening 09/08/2010 nobody came in the house of the accused.
I have carefully perused and analysed the evidence on the record.
It is not made clear by the Ld. Counsel for the accused as to what benefit he intends to reap by raising the said plea. When the accused was running his placement agency from his house, the fact as to who visited him during the three days from 07/08/2010 to evening of 64 of 68 65 FIR No. 280/10 PS - Vijay Vihar 09/08/2010 must be especially within his knowledge.
Sec. 106 of Indian Evidence Act, 1871 provides when any fact is especially within the knowledge of any person, the burden of proving that fact is upon him In the circumstance, there is no substance in the plea so raised by the Ld. Counsel for the accused.
28. Ld. Counsel for the accused submitted that PW8 - SI Ramesh did not make inquiry from the neighbours of the said incident and has stated that when he reached at the house of PW10 - Alok Nandini, she was alone while PW10 - Alok Nandini in her examination inchief has stated that her husband and children were present when the prosecutrix reached her house.
I have carefully perused and analysed the evidence on the record.
At the outset, Ld. Counsel for the accused does not seem to be clear while raising this plea as the testimonies of PW8 - SI Ramesh Thakur and that of PW10 - Alok Nandini refer to different points of time. It appears that Ld. Counsel for accused has picked up a little bit of 65 of 68 66 FIR No. 280/10 PS - Vijay Vihar deposition of said PWs with a view to show inconsistency therein but in fact, there is no such inconsistency therein therefore, the plea so raised is baseless.
PW10 - Alok Nandini in her examinationinchief has categorically deposed that : "On 09/08/2010 in the night at about 9:30 - 10:00 p.m., I was engaged in my household work, one girl named prosecutrix (name withheld) who hailed from Orissa came to my house"
During her crossexamination, PW10 - Alok Nandini has categorically deposed that : "At that time, my husband and my children were present in my house"
It is on the record that the matter was reported to the Police in the morning of 10/08/2010.
PW8 SI Ramesh Thakur in his crossexamination has specifically deposed that : "When I reached at the house of Alok Nandini, except Alok Nandini and victim, no one else was present."
As regards PW8 - SI Ramesh Thakur did not make inquiry from the neighbours of the said incident does not itself falsify the prosecution case, which is otherwise proved by clear, cogent and 66 of 68 67 FIR No. 280/10 PS - Vijay Vihar convincing evidence on the record. Moreover, the incident has taken place within the confines of four walls, how, the neighbours would have able to say anything on it.
Further, in case Nirmal Singh & Ors. Vs. State 2011 III AD (DELHI) 699, the Hon'ble Delhi High Court has held that : "It is a known fact that the persons of the public are reluctant to join the Police in the investigation of any case as they do not want to undertake unpleasant task of attending the Police Station and the Court for giving evidence."
In the circumstance, there is no substance in the plea so raised by the Ld. Counsel for the accused.
29. In view of above and in the circumstances, prosecution has thus proved beyond shadows of all reasonable doubts that on 07/08/2010 at 10:00 a.m. at his house situated at C171, Sector - 24, Rohini, Delhi, accused Mukesh Khanna had forcibly committed rape upon PW3 - prosecutrix without her consent and after the committal of the rape he criminally intimidated PW3 - prosecutrix with intent to cause alarm in her mind and had wrongfully confined PW3 - prosecutrix for two days at his aforesaid house.
67 of 68 68 FIR No. 280/10 PS - Vijay Vihar I accordingly, hold accused Mukesh Khanna guilty for the offences punishable u/s 376/506/342 IPC and convict him thereunder.
30. In view of above discussion, I am of the considered opinion that as far as the involvement of accused Mukesh Khanna in the commission of the offences u/s 376/506/342 IPC is concerned, the same has been 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 Mukesh Khanna beyond shadows of all reasonable doubts and there is no room for hypothesis, consistent with that of innocence of accused. I, therefore hold accused Mukesh Khanna guilty for the offences punishable u/s 376/506/342 IPC and convict him thereunder.
Announced in the open Court (MAHESH CHANDER GUPTA) on 18th Day of March, 2013 Additional Sessions Judge Special Fast Track Court (N/W District), Rohini, Delhi 68 of 68