Delhi District Court
Fir No. 701/07; State vs . Kamlesh Kumar Etc. Page 1 Of 44 on 30 November, 2012
IN THE COURT OF SH. YASHWANT KUMAR : ADDL. SESSIONS
JUDGE03:NW:ROHINI:DELHI
SESSIONS CASE NO. 34/08
FIR No. 701/07
P.S. Punjabi Bagh
U/S: 363/342/376/313/201/
506/34 IPC
STATE
Versus
(1) Kamlesh Kumar Gop @ Deepak
s/o Sh. Rameshwar
r/o vill. Kaliya, PS Narayanpur,
Distt. Jaspur, Chattisgarh
(2) Rudal Mandal
s/o Ghuran Mandal
r/o A199, Lal Quarters,
West Punjabi Bagh, Delhi
Permt. Add: Vill. Musukiya,
PS Khajuri, Distt. Madhubani, Bihar
Date of Institution: 20122007
Date of arguments: 27112012
Date of judgement: 30112012
JUDGMENT
1. The case of the prosecution, in brief, is that on FIR No. 701/07; State Vs. Kamlesh Kumar Etc. Page 1 of 44 23102007, Prosecutrix "V" went to PS Punjabi Bagh and gave her complaint regarding rape. In her complaint, Prosecutrix disclosed that she is aged about 14 years old and resident of village Butung, Post Bachrao, PS Narayanpur, Distt. Jabhpur, Chattisgarh. On 01072007, she came to Delhi on being misguided by accused Sangeeta and Kaleshwar @ Deepak both agents of Ritu Placement Service, A199, Lal Quarters, Delhi63 and the Agency was run by Rudal and Anima. Sangeeta told her that it feels very good in Delhi and they both will live in Delhi. The complainant was reluctant to come to Delhi but Sangeeta and Kaleshwar told her that they will leave her at Punjabi Bagh Convent. She spent the night in placement Agency. In the morning, when complainant asked to go to Convent, the door was closed and her belongings were hide. Thereafter, Prosecutrix spent the night in Placement Agency. On 06072007 at about 10:30 pm, accused Kaleshwar was drunk and he forcibly took prosecutrix to a small room and raped her there. The clothes of Prosecutrix were burnt. Whenever, Prosecutrix asked to go to her house, she was beaten by Kaleshwar and threatened to burn the family of Prosecutrix. Instead of sending Prosecutrix to her house, she was sent to work forcibly. When Prosecutrix came to know that she was carrying three months FIR No. 701/07; State Vs. Kamlesh Kumar Etc. Page 2 of 44 pregnancy and disclosed this fact to the owner of placement agency namely Rudal, he brought medicine and gave it to Prosecutrix. On 23092007, prosecutrix took the medicine. After four days, Prosecutrix was sent to do work in Kirti Nagar. Accused Kaleshwar threatened Prosecutrix that if she disclosed these things to anyone, her family would be killed. On this complaint, FIR was registered u/s 363/342/376/313/201/506/34 IPC and investigation was entrusted to ASI Urmil Sharma. During investigation, Prosecutrix was got medically examined from Sanjay Gandhi Hospital, Mangolpuri. Accused Kamlesh Kumar Gop @ Deepak, Sangeeta Minz and Rudal Mandal were arrested. Statement of Prosecutrix was got recorded on 27102007 and after completion of investigation, chargesheet was filed in the court u/s 363/342/376/313/201/506/34 IPC.
2. After compliance of Section 207 Cr.P.C., the case was committed to Sessions Court. Charge under Section 363/376/313/366/201/506 IPC r/w 109 IPC against accused Kaleshwar @ Kamlesh Kumar @ Deepak, u/s 363/366 IPC against accused Sangeeta Minz and u/s 376/342/313/201 r/w 109 IPC was framed against accused Rudal Mandal to which they pleaded not guilty and claimed trial.
FIR No. 701/07; State Vs. Kamlesh Kumar Etc. Page 3 of 44
3. In order to prove its case, Prosecution has examined 11 witnesses. Statements of accused were recorded u/s 313 Cr.P.C. wherein they denied all the allegations made against them. Accused opted not to lead defence evidence. During the course of trial, accused Sangeeta Minz absented herself and she was declared PO vide order dated 30102012.
4. I have heard Ld. Defence counsel and the Ld. APP for State and have perused the entire records.
5. Ld. Counsel for accused argued that the age of the Prosecutrix in the complaint dated 23102007, the MLC dated 24102007 and the statement u/s 164 Cr.P.C. are different. PW1/C is the Panchayat Certificate dated 29061994. PW1/D is the school certificate issued on 09012008 i.e. after filing of the challan. The birth certificates were not proved by the school authority and the Panchayat since there is an appropriate method to prove the documents as per the provisions under the Evidence Act. Even otherwise, PW10 ASI Urmil Sharma deposed in her examination in chief that she could not get the birth certificate. PW5 Dr. Kapila Sodhi deposed in crossexamination that no external or internal injury was found on the body of Prosecutrix. PW5 also deposed in her examination in chief dated 30072010 that patient/ Prosecutrix FIR No. 701/07; State Vs. Kamlesh Kumar Etc. Page 4 of 44 had undergone abortion. The Ld. Counsel for accused further argued that it is not possible where there are more rooms, the Prosecutrix could have been kept for such a long time and after three months, the pregnancy came to be known. Even it is not believable that Prosecutrix was missing and the parent of the Prosecutrion did not prefer to lodge any complaint for such a period of three months. The complainant where she was residing is thickly populated area but she never informed to anyone about the incident. Even otherwise, the prosecutrix nowhere disclosed at what place she was raped. The Prosecutrix was between 1618 years at the time of alleged incident. PW9 Dr. V. K. Jha also opined that the age of the Prosecutrix is to be of 16 to 18 years. Except the Prosecutrix, all the witnesses are the hearsay witnesses. There are contradictions in the testimony of PWs. The accused have been falsely implicated. In support of his arguments, Ld. Defence counsel has relied upon the judgements reported in the case of Mohd. Imran Khan & etc. Vs. State, 2010 CRI.L.J. 1756; Ramdhan Vs. State of Rajasthan, 2010 CRI.L.J. 2652; State of Rajasthan Vs. Mohd. Sharif & Ors. Vs. 2009 CRI.L.J. 4527; Jhinguriya Vs. State of Rajasthan, 2010 CRI.L.J. 795; and Rajesh Kumar & Anr. Vs. State of Jharkhand, 2010 CRI.L.J. 3512.
FIR No. 701/07; State Vs. Kamlesh Kumar Etc. Page 5 of 44
6. Ld. APP for State argued that accused Kamleshwar @ Kamlesh Kumar along with Sangeeta Minz (since PO) both agents of Ritu Placement Service kidnapped the Prosecutrix "V" a minor girl and brought her to Delhi and kept her at the Placement Agency at Punjabi Bagh where accused Kamlesh Kumar committed rape upon her and threatened her not to disclose this fact to anyone otherwise he will kill and burn his family members. The coaccused Rudal Mandal also abetted and conspired for the commission of the rape upon the Prosecutrix "V" as well as conspired with the coaccused Kamlesh for the miscarriage of Prosecutrix. The Prosecution has proved on record the evidence against both the accused of the acts as charged. So far as contradictions in the testimony of PWs are concerned, they are minor contradictions which do not go to the root of the case and even otherwise if there is faulty investigation, it does not give any right to the accused persons to be acquitted on that ground. In support of its case, the Ld. APP for State has relied upon the judgements reported in the case of Paramjeet Singh @ Pamma Vs. State of Uttarakhanda, AIR 2011 SC 200; Dhanaj Singh alias Shera and others Vs. State of Punjab, AIR 2004 SC 1920; Khujji alias Surendra Tiwari Vs. State of MP, 1991 CRI.L.J. 2653(1) and State of UP Vs. Krishna Master & Ors., 2010 CRI. L.J. 3889. FIR No. 701/07; State Vs. Kamlesh Kumar Etc. Page 6 of 44
7. In view of the above arguments of the Ld. Defence counsel and the Ld. APP for the State as well as the judgements relied upon by them, let us examine the evidence led in this case as to whether the accused had committed the offence as charged or whether they have been falsely implicated. PW1 Prosecutrix "V" deposed that she knows all the accused (correctly identified) namely Kamlesh Kumar @ Kamleshwar also known by the name of Deepak in Delhi, Sangeeta Minz being his cousin sister (daughter of his bua) and Rudal Mandal. PW1 further deposed that house of accused Kamlesh Kumar is situated at a distance of about 34 kilometres from her village. Accused Rudal Mandal was known to her as he was running placement agency in Delhi and provided job to her when she was brought to Delhi from Chattisgarh and she saw him first time in Delhi. Accused Sangeeta and Kamlesh @ Deepak enticed her on the pretext of providing job at Delhi and told her to provide job at Convent at Punjabi Bagh. PW1 further deposed that accused brought her to Delhi without the consent of her parents and she was taken to the office of Ritu Placement, Punjabi Bagh, Delhi run by Rudal Mandal and kept her there for about a week. During this period of one week, on 06072007, accused Kamlesh @ Deepak locked PW1 inside the room of placement Agency and FIR No. 701/07; State Vs. Kamlesh Kumar Etc. Page 7 of 44 thereafter he committed rape upon her after removing his clothes as well as clothes of PW1 and by putting his urinating portion into her urinating portion at about 10:30 pm. PW1 further deposed that after committing the rape, accused Kamlesh burnt her clothes i.e. salwar suit which she was wearing and removed by Kamlesh forcibly. Thereafter, accused Rudal Mandal and Kamlesh forcibly sent PW1 for work at a house situated at Kirti Nagar, Delhi.
8. PW1 further deposed that after about three months of the incident of rape, she came to know of her getting pregnant due to rape committed by accused Kamlesh and she told this fact to accused Rudal Mandal and also told him that she was not feeling well. Accused Rudal Mandal brought some medicines from the market and gave the same to PW1 for consuming. PW1 consumed the same as accused Rudal told her that she will get well. PW1 further deposed that she was not aware that the medicines given to her by accused Radal were meant for abortion. After consuming the said medicines, she felt lot of pain in her stomach and started bleeding mixed with pieces of flesh. PW1 came to know the fact that medicines given to her was meant for abortion of her foetus. PW1 further deposed that after four days of the date of her abortion, she was again directed to go to work at Kirti Nagar by both the FIR No. 701/07; State Vs. Kamlesh Kumar Etc. Page 8 of 44 accused. Accused Kamlesh threatened to kill PW1 and her family if she disclosed the fact of rape and abortion to anyone. The cousin brother of PW1 Vincent Ekka and sister Filomina came to Ritu Placement Agency and rescued PW1 from there. Thereafter, they took PW1 to PS Punjabi Bagh and she gave a handwritten complaint Ex. PW1/A addressed to SHO, PS Punjabi Bagh. Thereafter, PW1 was taken to Sanjay Gandhi Hospital for medical examination and she was medically examined by the doctors. Statement of PW1 u/s 164 Cr.P.C. Ex. PW1/B was also recorded by Ld. MM bearing her signature at point X and her thumb impression th at point Y. PW1 further deposed that she studied upto class 6 at AA.JA.KA. Poorv Madhyamik Shala, Kalia, V. Kha Bagicha, Distt. Jashpur, Chattisgarh. PW1 disclosed her date of birth as 29061994. PW1 produced her original school transfer certificate no. 1295 Ex. PW1/C issued by the Head Master and duly counter signed by Block Education Officer, TD Block, Bagicha, Distt. Jashpur, Chattisgarh and certificate issued by Sarpanch of Gram Panchayat, Batunga, Distt. Jashpur, Chattisgarh as Ex. PW1/D. PW1 stated that certificate was lying at her home at the time of alleged incident. PW1 also deposed that her cousin sister Sangeeta not accompanied the accused Kamlesh with her to Delhi and that FIR No. 701/07; State Vs. Kamlesh Kumar Etc. Page 9 of 44 Sangeeta was other lady who was not present in the court on that day.
9. PW2 Vinay Prakash deposed that he has four children i.e. three daughters and one son. Prosecutrix "V" is his second child whose date of birth is 29061994. Prosecutrix "V" went missing from the house on 01072007. PW2 made local inquiry and came to know that his daughter was taken away by accused Sangita and Kamlesh with them. He kept searching for his daughter. On 16102007, Vincent Ekka, son of his elder brother, telephonically informed him that his daughter Prosecutrix "V" was in Chetanalaya Sanstha, Gole Market. PW2 came to Delhi on 23102007 at Chetanalaya Sanstha. His daughter Prosecutrix "V" in the presence of Sister Philomena told him that on 06072007, accused Kamlesh (correctly identified) had committed rape on her and after raping her, he burnt her clothes and threatened that he would kill her relatives if she narrated the incident to anyone. Prosecutrix "V" had also told that she was brought by accused Sangeeta and Kamlesh on the pretext that she would be taught and would be kept in a convent in Delhi but she was left at Ritu Placement Agency, Punjabi Bagh. The name of the owner of Placement Agency was Rudal Mandal. In crossexamination conducted by Ld. APP for State, PW2 deposed FIR No. 701/07; State Vs. Kamlesh Kumar Etc. Page 10 of 44 that name of the placement agency was Ritu Placement, A199, Lal Quarter, West Punjabi Bagh, Delhi. PW2 also deposed that Prosecutrix "V" had also told that she had become pregnant due to the rape committed by the accused Kamleshwar and that accused Rudal Mandal gave her a tablet on 23092007 due to which, she aborted on 27092007. PW2 further deposed that he went to PS along with his daughter and sister Philomina and lodged the complaint.
10. PW3 Phenomena Tirkey deposed that in the month of September 2007, she received a telephone call from Vinay Prakash, father of Prosecutrix "V" that his daughter has been enticed away by Kamlesh Kumar and Sangeeta. On 01.10.2007, Prosecutrix "V" was rescued from Ritu Placement, A199, Lal Quarter, West Punjabi Bagh and took her to West Punjabi Bagh Convent. On 04/05.10.2007, a telephone call was made to the father of Prosecutrix "V" but he was not found at home. On 23.10.2007, Vinay Prakash came at their Sanstha and in the presence of her father, Prosecutrix "V" told them that she was enticed away by Sangeeta and Kamlesh Kumar on 01.07.2007 and was left at the office of Ritu Placement, A199, Punjabi Bagh of Rudal Mandal. Prosecutrix further informed that she was brought to Delhi on the FIR No. 701/07; State Vs. Kamlesh Kumar Etc. Page 11 of 44 pretext that she would be taken to West Punjabi Bagh Convent but was left in the office of Rudal Mandal and was asked to stay there for the night and was assured that she would be taken to Convent in the morning. In the morning, Prosecutrix found that her bag was concealed somewhere and the door of the agency was shut down. Prosecutrix "V" further informed that on the night of 06/07.07.2007, Kamlesh who was drunk, raped her and after committing her rape, her clothes which she was wearing, were burnt. Prosecutrix had also informed that whenever she wanted to return back home, she was beaten up and was forcibly put on a job. Prosecutrix had also informed that she became pregnant and therefore returned back to the agency and that Rudal Mandal gave her the medicine on 23.09.2007 due to which, she aborted on 27.09.2007. Prosecutrix "V" also informed that Kamlesh had threatened her not to tell about the same to anyone and in case she narrated the incident to anyone, he would kill her family and she was again forcibly put on a job. They then took Prosecutrix "V" and her father to PS Punjabi Bagh and lodged the complaint. Police took her to SGM Hospital for medical examination. The FIR was recorded on 24.10.2007. Statement of PW3 was also recorded by the police. Accused Kamlesh and Sangeeta (correctly identified) and accused Rudal FIR No. 701/07; State Vs. Kamlesh Kumar Etc. Page 12 of 44 Mandal (exempted for that day) were arrested by the police on 24.10.2007 from Ritu Placement, A199, Lal Quarter, Punjabi Bagh vide arrest memos Exbt. PW3/A to Exbt. PW3/C and their personal search was conducted vide memos Exbt. PW3/D to Exbt. PW3/F. Prosecutrix "V" was aged about 14 years at that time. In response to leading question put up by Ld. APP for State, PW3 deposed that FIR was registered on 23.10.2007 at about 8.30 pm.
11. PW4 Dr. Binay Kumar, CMO, SGM Hospital, Delhi deposed that on 24.10.2007, patient Prosecutrix "V", daughter of Vinay Prakash, 15yearsold female was admitted in the hospital with the history of kidnapping and alleged sexual assault three months back as told by the patient herself. She gave the history of changing clothes and bathing several times. After examination, PW4 referred her for gynae opinion and also referred her to medical board for bone age determination vide endorsement at point A on the MLC Exbt. PW4/A. On 24.10.2007, accused Kamlesh Kumar @ Deepak s/o Rameshwar, 19yearsold male was produced by Ct. Suman Kumar for medical examination and he examined him vide MLC Ex. PW4/B and opined that there was nothing to suggest that he was not capable of performing sexual act. The blood sample and undergarments of the patient were sealed and handed over to the FIR No. 701/07; State Vs. Kamlesh Kumar Etc. Page 13 of 44 IO. PW5 Dr. Kapila Sodhi, Senior Resident, Gynae, SGM Hospital, deposed that on 24.10.2007, Prosecutrix "V", daughter of Vinay Prakash, 15 years, female was referred for gynae opinion before her by Dr. Binay Kumar. The patient gave the history of kidnapping and sexual assault three months back. The patient claimed her age to be 14 years. The menstrual history of the patient was 3/30 days regular. The LMP was 01.10.2007 as told by the patient. She gave history of one abortion, after three months of Amenoria (13 weeks of pregnancy). She also gave the history that she took pills on 27.09.2007. On examination, pallaor (mildly anaemic) was present. On local examination, the hymen was found torn. On Perspeculum examination, cervix was healthy. On per vaginum examination, introitus lax admits two fingers easily. Vaginal swab was taken. Sample seal was prepared and was handed over to the IO. PW5 proved her gynae notes on MLC Exbt. PW4/A. PW5 further deposed that Prosecutrix "V" was admitted on 24102007 and discharged on 25102007 vide discharge slip Ex. PW5/A where she opined that it cannot be conclusively said that patient had undergone abortion and it can be assumed that by local examination penetration has taken place.
12. PW6 HC Naseeb Singh deposed that on 23102007, he FIR No. 701/07; State Vs. Kamlesh Kumar Etc. Page 14 of 44 was working as DO at PS Punjabi Bagh between 5 pm to 1 am. At about 8:30 pm, Prosecutrix "V" came at the PS and gave a written complaint to him on the basis of which he recorded FIR no. 701/07 u/s 363/342/376/313/201/506/34 IPC as Ex. PW6/A. PW6 made his endorsement Ex. PW6/B on the complaint Ex. PW1/A. PW7 Ct. Suman Kumar deposed that on 24.10.2007, on the instructions of WASI Urmil Sharma, accused Kamlesh Kumar, Rudal and Sangeeta (correctly identified) were taken to SGM Hospital, Mangol Puri for their medical examination. PW7 got accused Kamlesh Kumar medically examined and thereafter, doctor handed over him two sealed pullandas containing undergarments and blood sample of accused along with sample seal sealed with the seal of SGMH Government of NCT of Delhi. PW7 handed over the same to IO WASI Urmil Sharma which were taken into possession vide seizure memo Exbt. PW7/A. PW8 Sh. Anil Kumar, ACJcumARC, District North East, Karkardooma Court, Delhi deposed that on 27102007, he was posted as Metropolitan Magistrate at Rohini Court. On that day, an application for recording statement u/s 164 Cr.P.C. moved by IO of PS Punjabi Bagh received by him on the marking of Smt. Barkha Gupta, the then Ld. MM, Mahila Court, Rohini. The Prosecutrix was identified by the IO ASI Urmila Sharma and PW8 FIR No. 701/07; State Vs. Kamlesh Kumar Etc. Page 15 of 44 recorded statement Ex. PW1/B of Prosecutrix on the same day. PW9 Dr. V. K Jha, Medical Officer, BJRM Hospital, Jahangirpuri, Delhi deposed that on 01112007, he was posted as Chairman, Bone Age Estimation Board at Sanjay Gandhi Memorial Hospital, Mangolpuri. The other members of the Board were Dr. Vipul Mishra, SR (Radiologist), Dr. Divyapreet Sahni (Dentist); Dr. Manoj Dhingra (Forensic Expert). The Prosecutrix "V" d/o Vinay Prakash was physically examined by PW9 and her dental, radiological, forensic evaluation was done by Board members. After examination, her age was opined to be of 16 to 18 years vide age determination report Ex. PW9/A.
13. PW10 ASI Urmil Sharma deposed that on 23102007, he was telephonically called by DO, PS Punjabi Bagh whereby he was entrusted investigation of a rape case. On reaching the PS, the DO handed over him the original complaint and copy of FIR. Prosecutrix "V", her father Vinay Prakash and Ms. Philomina Tirkey from NGO Chetnalaya were present at the PS. After inquiring, PW10 recorded statements of victim and her father u/s 161 Cr.P.C. Victim was sent to SGM hospital with lady Ct. Suchitra and Ms. Philomina Tirkey for her medical examination and PW10 and Ct. Suresh also accompanied the prosecutrix to the hospital. After FIR No. 701/07; State Vs. Kamlesh Kumar Etc. Page 16 of 44 medical examination, the doctor handed over a sealed pullanda containing HVS of the victim bearing the seal of SGMH Govt of NCT of Delhi and a sample seal which were seized by PW10 vide memo Ex. PW10/A. The prosecutrix was admitted in the hospital. After deputing lady Constable at the hospital, PW10 along with Ct. Suresh came at the PS. The exhibits were deposited in Malkhana. Next day i.e. 24102007 morning, PW10 again went to the hospital to see the victim. Ms Philomina met PW10 and informed that all the three accused wanted in the case can be apprehended from A199, Lal Quarter, Punjabi Bagh. PW10 returned back at the PS and from there accompanied by Ct. Suresh and Ms Philomina went to A199, Lal Quarter, Punjabi Bagh. All the three accused (correctly identified) were apprehended on the pointing out of Ms. Philomina. After interrogation, all the three accused were arrested vide arrest memos Ex. PW1/A to PW1/C and their personal search were conducted vide memos Ex. PW1/D to PW1/F. Ct. Suman Jha and lady Ct. Manju were called from the PS. Thereafter, all the three accused were taken to the SGM hospital. After medical examination of all the three accused, the doctor handed over one sealed pullanda containing the undergarment of accused Kamlesh Kumar and the blood sample with the sample seal of SGM hospital which FIR No. 701/07; State Vs. Kamlesh Kumar Etc. Page 17 of 44 were seized vide memo Ex. PW7/A.
14. PW10 further deposed that on 25102007, victim Prosecutrix "V" was discharged from the hospital. PW10 filed an application u/s 164 Cr.P.C. Ex. PW10/B for recording statement of prosecutrix before Ld. Duty MM. PW10 could not get the birth certificate of the prosecutrix. PW10 also filed application before the Duty MM seeking permission for conduct of bone age test. The father of the victim filed an application seeking custody of the prosecutrix before the Duty MM which was allowed. The Prosecutrix was handed over in the custody of her father. The father of the girl handed over the prosecutrix to Ms. Philomina. PW10 along with victim and Ms Philomina went at the spot at A199, Lal Quarter, Punjabi Bagh, Delhi where he prepared the site plan Ex. PW10/C on the pointing out of the victim. He recorded supplementary statement of the victim. On 27102007, the statement of victim was recorded u/s 164 Cr.P.C. by Ld. MM. On 02112007, PW10 got conducted bone age xray of the Prosecutrix. On 05112007, PW10 sent the exhibits to FSL, Rohini vide RC no. 141/21/07. PW10 collected the bone age report of the prosecutrix vide which her age was found to be between 16 18 years. Pending the receipt of FSL result, chargesheet was filed u/s FIR No. 701/07; State Vs. Kamlesh Kumar Etc. Page 18 of 44 363/342/376/313/201/506/34 IPC. During trial, PW10 collected the FSL result Ex. PW10/D and PW10/E which were filed in the court. During trial, PW10 tried to search the clothes of the prosecutrix which were burnt by accused Kamlesh but they could not be traced. PW10 also could not find out the wrapper of the tablet which, according to prosecutrix, was administered to her by accused Rudal Mandal. PW11 Sh. Ranjit Kumar deposed that on 24.10.2007, he was posted at PS Punjabi Bagh as MHC(M). He proved entry no. 3859 of register no.19 as Ex. PW11/A. On 05.11.2007 the exhibits duly sealed along with sample seal and FSL form were sent to FSL Rohini through W/ASI Urmil Sharma vide RC No. 171/21 Ex. PW11/B who on return handed over the receipt to him. On 21.09.2008, the FSL result was received and the same was handed over to the IO.
15. During crossexamination, PW1/Prosecutrix deposed th that she has studied upto 6 standard and left her studies in the year 2007. She stayed at the house of one Sandeep at Kharsia. PW1 volunteered to say that Kamlesh and Sangita were knowing Sandeep but she did not know him personally. Accused Kamlesh Kumar @ Deepak met her for the first time at Kasabel in the bus and he accompanied her to Delhi. PW1 further deposed in her FIR No. 701/07; State Vs. Kamlesh Kumar Etc. Page 19 of 44 crossexamination that she was accompanied by accused Kamlesh, Sangeeta, Usha and Sandeep from Kharsiya to Delhi. However, PW1 volunteered that accused Sangeeta who was present in the court was not the same Sangeeta who accompanied her to Delhi from Kharsiya. After reaching Delhi, PW1 came to Madipur at Ritu Placement and she met accused Rudal Mandal at Ritu Placement. PW1 had told to the police about the fact that accused Kamlesh is also known by the name of Deepak. PW1 met 1012 persons at Ritu Placement when she first came to Delhi and they were men and women both. But she could not tell as to how many of them were men and women. There were other girls like PW1 in the placement agency but PW1 had no friendship or acquaintance with any of the girls present in the agency. Sangeeta and Usha also stayed at the placement agency with her. There were four rooms in the placement agency and there is an office at the entry of the placement agency. There were a small room on the left side with kitchen and there is also a dining room. There was another room in the placement agency.
16. PW1 further deposed in her crossexamination that on 06072007 night, only three persons were present in the placement agency i.e. accused Rudal Mandal, Anita Devi and Sangeeta. FIR No. 701/07; State Vs. Kamlesh Kumar Etc. Page 20 of 44 However, PW1 again said that accused Kamlesh was also present. PW1 also deposed in her cross examination that her father collected the certificate from Sarpanch and also the certificate Ex. PW1C from the School. PW1/prosecutrix further deposed in her cross examination that she was paid only Rs. 1,000/ by the Placement Agency and her dues are still pending with the said Placement Agency. PW1 denied the suggestion that she has got the accused Rudal Mandal implicated because he had not given her dues. Accused Rudal Mandal had given her the tablet. PW1 did not remember when for the first time mensuration period started. However, PW1 volunteered that she was not getting periods for the last about 23 months before taking the tablet. PW1 informed about the incident first of all to sister Sophia at West Patel Nagar and to rd her father on 23 October. PW1 also deposed in her cross examination that FIR was recorded after she narrated the incident to her sister Sophia. During cross examination, Ex.PW1/A was shown to her and PW1 stated that Ex.P1/A is in her hand writing which was written by her at West Patel Nagar. It is pertinent to mention here that Ex.PW1/A is the complaint of the prosecutrix. PW1 also deposed in her cross examination that the bleeding started in the month of October for the first time after the incident but she could FIR No. 701/07; State Vs. Kamlesh Kumar Etc. Page 21 of 44 not tell the date. PW1 further deposed in her cross examination that she had told the police that accused had forcibly removed her salwar suit. PW1 was called in the Placement Agency by accused Rudal Mandal on 02.10.2007. PW1 also stated that accused Kamlesh is the driver by profession.
17. PW2, father of the prosecutrix 'V', in his cross examination deposed that he got married in the year 199091. Police did not lodge the missing report despite his informing them. Even his report was not lodged at police station Conpuri. He did not try to meet the superior officers for lodging the missing report. However, PW2 volunteered that he did not have the knowledge as to what he should do. PW2 tried to search her daughter in the village and when she was not found there, he searched her in the relatives house. PW2 further deposed in his cross examination that his first child was born after about one year of his marriage and the second child was born after about 1½ years of the first child. PW2 volunteered that the prosecutrix 'V' is her second child and she was st born at his house and he got her admitted in a primary school in 1 Class at the age of six years. It is relevant to mention here that PW1 in her cross examination deposed that she studied upto six standard and left her studies in the year 2007. PW2 also deposed FIR No. 701/07; State Vs. Kamlesh Kumar Etc. Page 22 of 44 in his cross examination that he did not give birth certificate at the time of admission in the school. PW2 denied the suggestion that the age of her daughter was more than 18 years. PW3, in her cross examination deposed that she had attended the phone from PW2 Vinay Prakash. She was not knowing Vinay Prakash before the receipt of telephone. PW3 had gone to rescue prosecutrix 'V' along with cousin namely Vincent of prosecutrix 'V'. PW3 denied the suggestion that on 01.10.2007 she had not gone to Ritu Placement, Punjabi Bagh. PW3 volunteered that the prosecutrix 'V' was rescued on 01.10.2007 but her salary was to be paid to her and Usha was also to be rescued, she was again taken to the Placement Agency and on that day the letter Ex.PW1/D2 was written by father Vincent Ekka. Her salary was not paid even on 02.10.2007 or thereafter. PW3 further deposed in her cross examination that on 23.10.2007 at about 8.30 pm, when she was present at P.S. Punjabi Bagh, IO Urmil Sharma told her to accompany her to Ritu Placement Agency as the accused persons were to be arrested. The accused were present at the Placement Agency at the time when they reached there. PW3 came back to PS after the arrest of accused persons. PW3 denied the suggestion that in this case when the dues payment of prosecutrix 'V' was not paid by the placement FIR No. 701/07; State Vs. Kamlesh Kumar Etc. Page 23 of 44 agency, they concocted the false story and got the FIR registered with their influence. PW3 further denied the suggestion that accused persons are innocent and they have been framed up at their instance.
18. PW4 in his cross examination deposed that he did not conduct the bone age examination of accused Kamlesh Kumar @ Deepak. PW5 deposed in his cross examination that Introitus admits two fingers does not mean that the patient was adult. No external or internal injury was found on the body of the patient. PW7 in his crossexamination deposed that he got the accused Kamlesh Kumar medically examined at about 3.30 pm and handed over the pullandas along with sample seal at around 3.40 pm. PW9 denied the suggestion that the prosecutrix 'V' could be more than 18 years of age. PW10 deposed in his cross examination that she joined the investigation at about 9:30 pm on 23102007. She recorded statement of the prosecutrix 'V' for the first time in PS. It took her ½ hour to record statement of prosecutrix 'V'. PW10 also recorded statement of father namely Vinay Prakash of prosecutrix 'V'. PW10 further deposed in her cross examination that she collected the MLC and the discharge papers of the Prosecutrix 'V' regarding her treatment/admission in the hospital. PW10 denied FIR No. 701/07; State Vs. Kamlesh Kumar Etc. Page 24 of 44 the suggestion that she did not deliberately record statements of any of the neighbours for the reason that she knew that Sister Philomina was getting the false cases registered.
19. Let us examine whether the prosecutrix 'V' was minor at the time of incident. The Prosecutrix 'V' in her complaint dated 23102007 Ex.PW1/A given her age as 14 years. In the MLC Ex.PW4/A, the age of the Prosecutrix is mentioned as 15 years. PW1 in her examination in chief recorded on 19092008 stated her age about 15 years. PW2 father of the prosecutrix also stated in his examination in chief that the date of birth of the Prosecutrix is 29061994. During cross examination, PW2 categorically stated that he was about 25 years of age at the time of his marriage and he got married in the year 199091. He got the prosecutrix admitted in st 1 Class at the age of six years. However, he could not give birth certificate at the time of admission in the school. PW1 prosecutrix th 'V' stated in her cross examination that she had studied upto 6 standard and left the studies in the year 2007. PW2 father of the prosecutrix 'V' denied the suggestion that the age of her daughter was more than 18 years. PW4 Dr. Binay Kumar and PW5 Dr. Kapila Sodhi also deposed that the prosecutrix 'V' D/o Vinay Prakash aged 15 years, was admitted in the hospital with the history of kidnapping FIR No. 701/07; State Vs. Kamlesh Kumar Etc. Page 25 of 44 and alleged sexual assault three months back and referred to gynae opinion. PW1 proved Ex.PW1/C which is the School Transfer Certificate which reveals the date of birth of the prosecutrix 'V' as 29061994. PW1 also proved the certificate issued by Sarpanch, Gram Panchayat, Batunga, Distt. Jashpur, Chattisgarh as Ex.PW1/D which also reveals the date of birth of the prosecutrix 'V' as 29061994. There is no reason to disbelieve the date of birth mentioned in Ex. PW1/C and Ex. PW1/D. Even otherwise, date of birth of Prosecutrix stated by the father of the Prosecutrix can also be believed since parents are the best persons to tell the age of their children. In view of the above facts and circumstances and also the aforesaid documents i.e. Ex.PW1/C and Ex.PW1/D, I am of the considered opinion that the age of the prosecutrix 'V' was about 14 years at the time of incident i.e. 06072007. Meaning thereby the prosecutrix 'V' was minor at the time of commission of rape upon her. In this context, I would place a reliance upon the judgement reported in the case of Ashwani Kumar Vs. State of Haryana 2003 (3) Crimilal Court Cases 539 (P&H) wherein the Hon'ble Court held that the protective custody of father does not come to an end even if minor himself or herself abandons the custody of her parents. It was held that for proving kidnapping or taking away from the lawful FIR No. 701/07; State Vs. Kamlesh Kumar Etc. Page 26 of 44 guardianship, the age is material but consent is not material. If anyone takes away or entices any minor, then the offence is made out. In the present case, the Prosecutrix "V" examined as PW1 categorically deposed in her examination in chief that the accused Sangeeta (since PO) and accused Kamlesh @ Deepak enticed her on the pretext of providing job at Delhi and told her to provide job at Convent at Punjabi Bagh and the accused brought her to Delhi without the consent of her parents and she was taken to the office of Ritu Placement, Punjabi Bagh, Delhi run by accused Rudal Mandal and kept her there for about a week. PW2, father of the Prosecutrix "V" also deposed in his examination in chief that Prosecutrix "V" got missing from the house on 01072007 and after local inquiry made, he came to know that his daughter was taken away by the accused Sangeeta (since PO) and accused Kamlesh with them. PW2 kept searching for his daughter. Thus, I hold that the accused Kamlesh @ Deepak is guilty of kidnapping the Prosecutrix "V" as her age was less than 16 years.
20. Let us further examine whether the accused Kamleshwar @ Kamlesh Kumar @ Deepak after kidnapping the prosecutrix 'V' confined her in a room near his placement agency and committed rape upon her against her wishes and without her consent. So far FIR No. 701/07; State Vs. Kamlesh Kumar Etc. Page 27 of 44 as the legal position is concerned, explanation to Section 375 IPC makes it clear that penetration is sufficient to constitute sexual intercourse necessary to the offence of rape. To constitute penetration it must be proved that some part of the virile member of the accused was within the labia of the pudendum of the woman, no matter how little. The only thing to be ascertained is whether the private parts of the accused did enter into the person of the woman. Therefore, it is not necessary to decide how far they entered. It is not essential that the hymen should be ruptured, provided it is clearly proved that there was penetration even though partial. For the offence of rape to be committed, it is not necessary that there should be complete penetration. Similarly, seminal emission is not necessary to establish rape. What is necessary is that there must be penetration. Absence of spermatozoa cannot negative rape. Slightest degree of penetration with or without ejectment attracts the ingredients of Section 375 IPC. Thus, absence of spermatozoa cannot negative rape. Reference can be had in this regard of Modi in his well known work "Medical Jurisprudence & Toxicology"
therein it is stated that "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 FIR No. 701/07; State Vs. Kamlesh Kumar Etc. Page 28 of 44 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 sufficient for the purpose of the law. It is, therefore, quite possible to commit legally the offence of rape without producing any injury to the genitals or leaving any seminal stains."
21. The evidence of the victim of sexual assault has great probative force and the conviction of the accused on the basis of the testimony of the prosecutrix alone is permissible where the evidence of the prosecurix inspires confidence and appears to be natural and truthful. A plethora of decisions by Hon'ble Supreme Court would show that once the statement of prosecutrix inspires confidence and is accepted by the court as such, conviction can be based only on the solitary evidence of the prosecutrix and no corroboration would be required unless there are compelling reasons which necessitate the courts for the corroboration of her statement. The testimony of the prosecutrix is to be appreciated on the principle of probability just as the testimony of any other evidence. In the case of Bharwada Bhoginbhai Hirjibhai Vs. State of Gujrat 1983 (3) SCC 217, it was held that in the Indian setting, refusal to act on the testimony of a victim of sexual assault in the absence of corroboration as a rule, is adding insult to injury. Why should the FIR No. 701/07; State Vs. Kamlesh Kumar Etc. Page 29 of 44 evidence of the girl or the woman who complains of rape or sexual molestation be viewed with the aid of spectacles fitted with lenses tinged with doubt, disbelief or suspicion? To do so is to justify the charge of male chauvinism in a male dominated society. The Hon'ble Court further held that we must analyze the argument in support of the need for corroboration and subject it to relentless and remorseless crossexamination. And we must do so with a logical and not an opiniated, eye in the light of probabilities with our feet firmly planted on the soil of India and with our eyes focussed on the Indian horizon. We must not be swept off the feet by the approach made in the western world which has its own social milieu, its own social mores, its own permissive values; and its own code of life. Corroboration may be considered essential to establish a sexual offence in the backdrop of the social ecology of the western world. It is wholly unnecessary to import the said concept on a turnkey basis and to transplant it on the Indian soil regardless of the altogether different atmosphere, attitudes, mores, responses of the Indian society, and its profile."
22. Similarly, in the case of State of Maharashtra Vs. Chandraprakash Kewal Chand Jain 1990 (1) SCC 550, the court held that a prosecutrix of a sex offence cannot be put on par with FIR No. 701/07; State Vs. Kamlesh Kumar Etc. Page 30 of 44 an accomplice. She is in fact a victim of the crime. The Evidence Act nowhere says that her evidence cannot be accepted unless it is corroborated in material particulars. She is undoubtedly a competent witness under Section 118 and her evidence must receive the same weight as is attached to an injured in cases of physical violence....... What is necessary is that the court must be alive to and conscious of the fact that it is dealing with the evidence of a person who is interested in the outcome of the charge leveled by her. If the court keeps this in mind and feels satisfied that it can act on the evidence of the prosecutrix, there is no rule of law or practice incorporated in the Evidence Act similar to illustration (b) to Section 114 which requires it to look for corroboration........... If the totality of the circumstances appearing on the record of the case disclose that the prosecutrix does not have a strong motive to falsely involve the person charged, the court should ordinarily have no hesitation in accepting her evidence. We have, therefore, no doubt in our minds that ordinarily the evidence of a prosecutrix who does not lack understanding must be accepted."
23. In the present case, it emerges from the evidence discussed above that the prosecutrix 'V' categorically stated in her initial statement Ex.PW1/A filed in the P.S. Punjabi Bagh that the FIR No. 701/07; State Vs. Kamlesh Kumar Etc. Page 31 of 44 accused Kamleshwar raped her on 06.07.2007. The prosecutrix 'V' examined as PW1 also categorically deposed in her examination in chief that on 06.07.2007, the accused Kamlesh @ Deepak locked her inside the room of placement agency and thereafter he committed rape upon her after removing his clothes as well as clothes of PW1 and by putting his urinating portion into her urinating portion at about 10.30 pm. Thereafter, accused Rudal Mandal and Kamlesh forcibly sent prosecutrix 'V' for work at a house situated at Kirti Nagar, Delhi. The prosecutrix 'V' examined as PW1 further deposed in her examination in chief that after about three months of the incident of rape, she came to know of her getting pregnant due to rape committed by accused Kamlesh and she told this fact to accused Rudal Mandal and also told him that she was not feeling well. PW1 in her cross examination also deposed that she had told the police that the accused had forcibly removed her salwar suit. On a careful perusal of MLC Ex. PW4/A, it reveals that the doctor had written the history of sexual assault. PW5 Dr. Kapila Sodhi, Senior Resident (Gynae), SGM Hospital, Delhi also deposed in her examination in chief that on local examination of the prosecutrix 'V', the hymen was found torn. The doctor cannot give the finding of sexual assault or rape. Rape is a crime and not a medical condition. FIR No. 701/07; State Vs. Kamlesh Kumar Etc. Page 32 of 44 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 sexual activity. Whether the rape has occurred or not is a legal conclusion and not a medical one. Therefore, as discussed above, the doctor had observed the hymen found torn on the medical examination of the Prosecutrix. Thus, the medical evidence also does not rule out the possibility of rape.
24. It has been argued by the Ld. counsel for the accused persons that there are improvements in the testimony of prosecutrix 'V' and on the basis of the improvements, it shall be unsafe to rely on the testimony of the prosecutrix 'V'. In this regard, I am of the considered view that minor contradictions or insignificant discrepancies in the testimony of the prosecutrix 'V' should not be a ground for throwing out an otherwise reliable prosecution case. In so far as certain inconsistencies or minor contradictions in the narration or embellishment are concerned, the Apex Court in the case of Randhir Basu Vs. State of West Bengal AIR 2000 SC 908 held that some inconsistencies of a minor nature in the evidence of the witness can be regarded as natural giving more details while disposing before the court are not to be treated as improvements by FIR No. 701/07; State Vs. Kamlesh Kumar Etc. Page 33 of 44 such a nature as would create any doubt regarding the trustworthiness of a witness. Minor discrepancies are possible even in the version of truthful witnesses and such minor discrepancies only add to the truthfulness of their evidence. The main thing to be seen is whether the inconsistencies go to the root of the matter or pertain to insignificant aspect thereof. The discrepancies which do not go to the root of the matter and shake the basic version of the witness, cannot be annexed with undue importance. More so, when all the important probability factors echoes in favour of the version narrated by the witness. In the case of Jamir Ahmad Vs. State 1996 Crl. L. J. 2354, the Hon'ble Court held that embellishment, exaggeration, contradictions and inconsistencies are bound to creep in with the passage of time. If witnesses are not tutored, they would come out with a natural and spontaneous version of their own. Similarly, in the case of Kanwar Singh Vs. State of Rajasthan 1996, Crl. L. J. 4056, it has been held that there is bound to occur contradictions and inconsistencies in the statement of witnesses with the passage of time or for any other reasonable cause, but on account of this, by itself, benefit of doubt cannot be extended to the accused. In the case of Markandaya Naik Vs. State 1993 Crl. L. J. 3328 (Orissa) it has been held that there is tendency amongst the FIR No. 701/07; State Vs. Kamlesh Kumar Etc. Page 34 of 44 witnesses in our country to back up a good case by false or exaggerated version. The witnesses also add embroidery to Prosecution version, perhaps for the fear of being disbelieved. But that is no ground to throw the case over board, if truth in the main. If there is a ring of truth, the case should not be rejected.
25. In the present case, the discrepancies pointed out by the Ld. defence counsel are not major discrepancies or contradictions which may affect the core of testimony of the prosecutrix 'V' which being that accused had raped her. Prosecutrix 'V' has withstood the test of cross examination. Her testimony is cogent. In this context, I would also place a reliance upon the judgement reported in the case of State of Punjab Vs. Gurmit Singh and others, AIR 1996 SC 1393, it was held that testimony of victim in cases of sexual offences is vital and unless there are compelling reasons which necessitate looking for corroboration of her statement, the Courts should find no difficulty to act on the testimony of a victim of sexual assault alone to convict and accused where her testimony inspires confidence and is found to be reliable. Seeking corroboration of her statement before relying upon the same, as a rule, in such cases amounts to adding insult to injury. Why should the evidence of a girl or a women who complains of rape or sexual molestation, be viewed with FIR No. 701/07; State Vs. Kamlesh Kumar Etc. Page 35 of 44 doubt, disbelief or suspicion? The Court while appreciating the evidence of a prosecutrix may look for some assurance of her statement to satisfy its judicial conscience, since she is a witness who is interested in the outcome of the charge levelled by her, but there is no requirement of law to insist upon corroboration of her statement to base conviction of an accused. The evidence of a victim of an injured witness and to an extent is even more reliable. Just as a witness who has sustained some injury in the occurrence, which is not found to be self inflicted, is considered to be a good witness in the sense that he is least likely to shield the real culprit. The evidence of a victim of a sexual offence is entitled to great weight, absence of corroboration notwithstanding. Corroborative evidence is not an imperative component of judicial credence in every case of rape. Corroboration as a condition for judicial reliance on the testimony of the prosecutrix is not a requirement of law but a guidance of prudence under given circumstances. It must not be overlooked that a woman or a girl subjected to sexual assault is not an accomplice to the crime but is a victim of another person's lust and it is improper and undesirable to test her evidence with a certain amount of suspicion, treating her as if she were an accomplice. Inferences have to be drawn from a given set of facts FIR No. 701/07; State Vs. Kamlesh Kumar Etc. Page 36 of 44 and circumstances with realistic diversity and not dead uniformity lest that type of rigidity in the shape of rule of law is introduced through a new form of testimonial tyranny making justice a casualty. Courts cannot cling to a fossil formula and insist upon corroboration even if, taken as a whole, the case spoken of by the victim of sex crime strikes the judicial mind as probable.
26. PW2 father of the prosecutrix 'V' categorically deposed in his examination in chief that he came to Delhi on 23102007 at Chetanalaya Sanstha. His daughter Prosecutrix "V" in the presence of Sister Philomena told him that on 06072007, accused Kamlesh who has been correctly identified by PW2, had committed rape on her and after raping her, he burnt her clothes and threatened that he would kill her relatives if she narrated the incident to anyone. Prosecutrix "V" had also told that she was brought by accused Sangeeta and Kamlesh on the pretext that she would be taught and would be kept in a convent in Delhi but she was left at Ritu Placement Agency, Punjabi Bagh. Relationship is not a factor to affect the credibility of a witness. It is more often than not that a relation would not conceal the actual culprit and make allegations against an innocent person. Foundation has to be laid if plea of false implication is made. In such cases, the court has to adopt a FIR No. 701/07; State Vs. Kamlesh Kumar Etc. Page 37 of 44 careful approach and analyze the evidence to find out whether it is cogent and credible. It cannot be said that a witness being a close relative and consequently being a partisan witness should not be relied upon. In taking this view, I am supported by the judgment of Hon'ble Supreme Court in the case of Sucha Singh & Anr. Vs. State of Punjab AIR 2003 SC 3617 (1). Similarly, in the case of Harbans Kaur & Anr. Vs. State of Haryana AIR 2005 SC 2989, the Hon'ble Supreme Court held that there is no proposition in law that the relatives are to be treated as untruthful witnesses. Reason has to be shown when plea of partiality is raised to show that witnesses had reason to shield the actual culprit and falsely implicate the accused. In the present case, accused have not shown any reason as to why the father of the prosecutrix 'V' would shield the actual culprit and falsely implicate the accused. In sexual offences, there is no valid or tangible reason why father of the prosecutrix 'V' will tender false evidence against the accused unless the same is thoroughly truthful.
27. The Ld. Counsel for the accused have argued that the accused have been falsely implicated in this case. In this regard, I am also of the considered view that in the traditional nonpermissive bounds of society of India, no girl or woman of self respect and FIR No. 701/07; State Vs. Kamlesh Kumar Etc. Page 38 of 44 dignity would depose falsely, implicating somebody of ravishing her chastity by sacrificing and jeopardising her future prospect. Not only this, the family of the girl would invite the wrath of being ostracised and cast out from the society to which it belongs. It appears highly improbable that the father of the prosecutrix 'V' would get the accused persons falsely implicated by making the Prosecutrix "V" a tool and spoil her life. The defence taken by the accused persons is, therefore, not acceptable. Further, the aspect of delay in lodging the FIR is concerned, in this regard, I would rely upon the judgement reported in the case of State of Punjab Vs. Gurmit Singh and others, AIR 1996 SC 1393 wherein it was held that in sexual offences delay in lodging of the FIR can be due to variety of reasons particularly the reluctance of the prosecutrix or her family members to go to the police and complain about the incident which concerns the reputation of the prosecutrix and the honour of her family. It is only after giving it a cool thought that a complaint of sexual offence is generally lodged. Even if there is some delay in lodging FIR in respect of offence of rape, if it is properly explained and the explanation is natural in the facts and circumstances of the case, such delay would not matter. In the case of Ranjan Dwivedi Vs. CBI through Director General, 2012 CRI.L.J. 4206 it was held that FIR No. 701/07; State Vs. Kamlesh Kumar Etc. Page 39 of 44 criminal offence is considered as a wrong against the State and the society even though it has been committed against an individual. Normally, in serious offences, prosecution is launched by the State and a Court of law has no power to throw away prosecution solely on the ground of delay. In the present case, the delay in lodging the FIR has been explained by the prosecutrix 'V' as well as the other witnesses as discussed above. Therefore, the accused persons cannot get the benefit of delay, if any, in lodging the FIR in this case.
28. The prosecutrix 'V' in her complaint Ex. PW1/A categorically stated that the accused Kamlesh and accused Sangeeta (since declared P.O.) enticed away her to Delhi and after reaching Delhi, they stayed at night in the Ritu Placement Agency, situated at Punjabi Bagh, Delhi as stated above. On 06072007 at about 10.30 pm, accused Kamlesh was drunk and he forcibly took the prosecutrix 'V' to a room and raped her there. Whenever prosecutrix 'V' asked to go to her house she was beaten by accused Kamlesh and threatened to burn her family. The prosecutrix 'V' also deposed in her cross examination as PW1 that the accused Kamlesh threatened her to kill her family and herself, if she disclosed the fact of rape and abortion to anyone. The Prosecutrix FIR No. 701/07; State Vs. Kamlesh Kumar Etc. Page 40 of 44 "V" in her complaint Ex. PW1/A stated that she stayed in the Placement Agency for one week after coming to Delhi and on 06072007, accused Kamleshwar after having drunk, committed her rape at about 10:30 pm. After committing rape, accused Kamlesh burnt her clothes i.e. salwarsuit which she was wearing and removed by accused Kamlesh forcibly. When the Prosecutrix "V" became pregnant of about 3 months, then the accused Rudal Mandal, owner of Placement Agency was informed and accused Rudal Mandal brought the medicines after purchasing it which the Prosecutrix consumed on 23092007. PW1 came to know the fact that medicines given to her were meant for abortion of her foetus. After consuming the medicines, the Prosecutrix felt lot of pain in her stomach and started bleeding mixed with pieces of flesh. PW1 in her examination in chief stated that after four days of the date of her abortion, accused Rudal Mandal and Kamlesh forcibly sent her for work at a house situated in Kirti Nagar, Delhi. However, nowhere from the facts, circumstances and evidence discussed above reflected that accused Rudal Mandal had conspired with coaccused Kamleshwar @ Kamlesh Kumar to abet an illegal act i.e. to facilitate the offence of rape committed by coaccused Kamlesh @ Kamleshwar.
FIR No. 701/07; State Vs. Kamlesh Kumar Etc. Page 41 of 44
29. It is pertinent to mention here that even if the investigation is defective or faulty, the accused cannot be acquitted solely on account of defective or faulty investigation. In this context, I would place a reliance upon the judgement reported as Karnel Singh Vs. State of MP, AIR 1995 SC 2472=AIR 2004 SC 1920 it was held that in the case of defective investigation, the court has to be circumspect in evaluating the evidence. But it would not be right in acquitting the accused persons solely on account of the defect and to do so would tantamount to playing into the hands of the investigating officer if the investigation is designedly defective.
30. Hence, in my considered view, the evidence of the Prosecutrix 'V', no doubt, has inspired confidence which is natural and truthful and there are no compelling reasons for requirement of the corroboration of her statement in view of the facts and circumstances of the case. The Prosecutrix 'V' is in fact the victim of crime and her evidence has also received the same weightage as that of injured person in case of physical violence. The Prosecutrix has withstood the test of crossexamination. Nothing concrete has been pointed out in crossexamination which may shake her credibility or trustworthiness. Further, the circumstances appearing on record have no where reflected that the Prosecutrix 'V' has FIR No. 701/07; State Vs. Kamlesh Kumar Etc. Page 42 of 44 falsely involved the accused persons. Thus, it has been proved on record that the accused Kamleshwar @ Kamlesh Kumar @ Deepak kidnapped the Prosecutrix "V" minor girl aged about 14 years and compelled her to have illicit intercourse with him and then the accused Kamlesh @ Kamleshwar committed rape upon her and further. Further, criminal intimidation was given by the accused Kamleshwar @ Kamlesh to the Prosecutrix "V" to kill her and her family members if she disclosed about rape committed by him to anyone. Further, it has also been further proved on record that the accused Kamleshwar @ Kamlesh Kumar along with coaccused Rudal Mandal conspired with each other to give medicines to the Prosecutrix "V" for causing miscarriage of pregnancy and on this abetment, coaccused Rudal Mandal brought some medicines from the market and gave to the Prosecutrix "V" for her miscarriage. The Prosecutrix "V" was wrongfully confined at the Placement Agency of Rudal Mandal. The aforesaid judgements relied upon by the Ld. Counsel for the accused persons are not applicable to the facts and circumstances of the present case.
31. In view of my aforesaid discussion, I am of the considered opinion that Prosecution has been able to prove its case against accused persons beyond reasonable doubt. I, therefore, FIR No. 701/07; State Vs. Kamlesh Kumar Etc. Page 43 of 44 hold both accused guilty and convict accused Kamlesh Kumar @ Deepak u/s 363/366/376/201/506 IPC and u/s 313 IPC r/w 109 IPC and accused Rudal Mandal is convicted u/s 313/342/201 IPC r/w 109 IPC. Copy of the judgement be given to the convicts free of cost.
(YASHWANT KUMAR) ADDL. SESSIONS JUDGE:NW03:ROHINI:DELHI.
ANNOUNCED IN THE OPEN COURT 30112012 FIR No. 701/07; State Vs. Kamlesh Kumar Etc. Page 44 of 44