Delhi District Court
State vs . Amit Kumar on 20 May, 2014
1
FIR No. 302/11
PS - Vijay Vihar
IN THE COURT OF SH. MAHESH CHANDER GUPTA :
ADDITIONAL SESSIONS JUDGE : SPECIAL FAST TRACK
COURT : NORTHWEST DISTRICT : ROHINI : DELHI
SESSIONS CASE NO. : 129/13
Unique ID No. : 02404R0283172011
State Vs. Amit Kumar
S/o Sh. Hari Chand
R/o C 66, J. J. Colony,
Sector - 24, Rohini,
Delhi.
FIR No. : 302/11
Police Station : Vijay Vihar
Under Sections : 376/506 IPC
Date of committal to session Court : 05/11/2011
Date on which judgment reserved : 07/05/2014
Date on which judgment announced : 20/05/2014
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 131 2 FIR No. 302/11 PS - Vijay Vihar That on 04/08/2011, SI G. R. Tanwar received DD No. 35A regarding complaint of Kamal Dass S/o Devi Prasad, R/o C 63, Sector
- 24, J. J. Colony, Rohini that with his daughter/prosecutrix (name withheld being a case u/s 376 IPC), aged 16 years, his neighbour Amit and three other boys have committed rape. On receipt of DD No. 35 A, the statement of the prosecutrix was recorded and the prosecutrix in the presence of her mother and father made the statement which is to the effect that, she lives with her parents at the said given address and studies in 8th class in Rana Pratap Sarvodaya Kanya Vidhalaya, Rithala, Delhi (Main Pata Uprokat Par Ma Baap Ke Sath Rehti Hun Aur Rana Pratap Sarvodaya Kanya Vidhalaya Rithala Delhi mei 8th Class Mei Padhti Hun). On 02/08/2011, as the condition of her father was not well, her mother had taken him for examination (dikhane ke liye) at MAX Hospital, Pitam Pura, Delhi, where her father was admitted in ICU (Dinank 02/08/2011 Ko Meri Mata Ji Mere Pita Ki Tabiyat Kharab Hone Ki Vajah Se, Max Hospital, Pritam Pura, Delhi Mei Dikhane Ke Liye Gai Thi. Jahan Par Mere Pita Ji ICU Mei Admitted The). She was alone at home (Mai Ghar Par Akeli Thi). At about 2:00 p.m. in the day time, on 02/08/2011, when she was sleeping in her house, then, Amit who lives 2 of 131 3 FIR No. 302/11 PS - Vijay Vihar in her neighbourhood in House No. C66, J. J. Colony, whom she knew previously who after opening the gate of her house came into the room (Samay Qareeb 2:00 Baje Din 02/08/2011 Ko Mai Apne ghar Mei So Rahi Thi To Pados Mei Rehne Wala Amit Jo House No. C 66, J. J. Colony, Sector - 24, Rohini Mei Rehta Hai, Jisko Mai Pehle Se Janti Hun. Jo Mere Ghar Ka Gate Khol Kar Kamre Mei Aa Gaya). She prevented him, Bhaiya where he is going, she is alone at home but he did not obey, firstly he slapped her and then tied her hands and tied her eyes and mouth with Chunni. He removed her clothes and then committed rape upon her (Maine Usko Mana Kiya Ki Bhaiya Kahan Ja Rahe Ho Mai Ghar Mei Akeli Hun. Parantu Woh Nahi Mana Usne Pehle Mere Thappad Mare Aur Fir Mere Haath Bandh Diye Va Chunni Se Meri Aankh Va Muh Ko Bandh Diya Mere Kapde Utar Kar Mere Saath Balatkaar Kiya). He had already consumed liquor (Sharab Pe Rakhi Thi). Thereafter, Amit opening the inside kundi of the house went out and came back after calling three more boys and they three also turn by turn committed rape upon her. She does not identify those three boys nor she knows them (Uske Baad Amit Ne Ghar Ki Ander Ki Kundi Khol Kar Bahar Chala Gaya Aur Teen Ladko Ko Aur Bula Laya Aur Un 3 of 131 4 FIR No. 302/11 PS - Vijay Vihar Teeno Ne Bhi Mere Sath Bari Bari Se Balatkaar Kiya. Un Teen Ladko Ko Mai Pehchani Nahi Hun Aur Na Hi Janti Hun). On 02/08/2011, her father was discharged from the Hospital and his mother and father came to the house (Dinaka 02/08/2011 Ko Mere Pita Ji Ki Hospital Se Chutti Ho Gai. Mere Mata Pita Dono Ghar Par Aa Gaye). On that day, she did not tell anything about rape to her parents because Amit had threatened her if she told anything to anyone, then he will kill her (Us Din Maine Apne Mata Pita Ko Balatkaar Ke Bare Mei Kuch Nahi Batlaya Kyonki Mujhe Amit Ne Dhamki Di Thi Ki Agar Kisi Ko Kuch Bata Degi To Jaan Se Maar Dunga). On the next day, her condition started getting worse and she had vomited (Agle Dine Meri Tabiyat Kharab Hone Lagi Aur Ulti Ho Gai). She got frightened and had told all about the incident to her mother (Mai Ghabra Gai Aur Maine Saari Baatein Meri Maa Ko Batla Di). Today (04/08/2011), she has come to the Police Station with her parents. Her statement has been recorded. Legal action be taken against those persons. The statement has been heard, read and is correct. NGO was called at the Police Station and the prosecutrix was got counselled. Prosecutrix was sent for medical examination under the supervision of Lady Constable Manita and HC Shyam Sunder with her 4 of 131 5 FIR No. 302/11 PS - Vijay Vihar parents. Medical examination of the prosecutrix was got conducted from the BSA Hospital in the presence of her mother vide MLC No. 98/11. Her MLC was obtained and the sealed exhibits handed over by the Doctor after her medical examination were taken into Police possession and were deposited in the Malkhana. On the basis of the statement of the prosecutrix and from inspection of the MLC, on finding that offences u/s 376 (2)(g)/506 IPC appeared to have been committed, the case was got registered and the investigation was proceeded with. During the course of investigation, site plan was prepared and statements of the witnesses were recorded. Accused Amit Kumar was arrested, his medical examination was got conducted vide MLC No. 7491/11 (E No. 74924) and the sealed exhibits handed over by the Doctor after his medical examination were taken into Police possession and were deposited in the Malkhana. Statement of the prosecutrix u/s 164 Cr.P.C. was got recorded. Sealed exhibits were sent to the FSL.
Upon completion of the necessary further investigation challan for the offences u/s 376/506 IPC was prepared against accused Amit Kumar and was sent to the Court for trial.
5 of 131 6 FIR No. 302/11 PS - Vijay Vihar
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 sections 376/506 IPC was made out against accused Amit Kumar. The charge was framed accordingly, which was read over and explained to the accused to which he pleaded not guilty and claimed trial.
4. In support of its case prosecution has produced and examined 19 witnesses. PW1 Prosecutrix, PW2 Dr. Deepika Jagga, S.R. Gynae, BSA Hospital, Rohini, Delhi, PW3 Dr. Kuldeep Singh, CMO, BSA Hospital, Delhi, PW4 Smt. Raj, PW5 Kamal Dass, PW6 HC Chander Mohan, PW7 HC Ram Singh, PW8 - Constable Avinash, PW9 Lady Constable Ram Bhatari, PW10 Constable Anand Prakash, PW11 HC Shyam Sunder, PW12 HC N. Sridher, PW13 SI G. R. Tanwar, PW14 - Ms. Anita Chhari, Senior Scientific Officer (Biology), 6 of 131 7 FIR No. 302/11 PS - Vijay Vihar FSL, Rohini, Delhi, PW15 - Sh. Deepak Wason, Metropolitan Magistrate, Saket Courts, Delhi, PW16 - Mrs. Chanchal, T.G.T., R.P.S.K.V., Rithala, Delhi, PW17 - Retired SI Prem Singh R/o D36, Lord Krishna Road, Adarsh Nagar, Delhi, PW18 - W/Constable Manita and PW19 - Constable Rajbir.
5. In brief the witnessography of the prosecution witnesses is as under : PW1 Prosecutrix is the victim who deposed regarding the incident and proved her statement made to the Police Ex. PW1/A, signed by her at point 'A', her statement recorded u/s 164 Cr.P.C. Ex. PW1/B, signed by her at points 'A' & 'B' and also identified and proved her clothes i.e. a jeans pant of blue colour Ex. P1 and a lady shirt of orange and white colour Ex. P2.
PW2 Dr. Deepika Jagga, S.R. Gynae. BSA Hospital, Rohini, Delhi who deposed that on 04/08/2011 at about 10:00 p.m. victim/prosecutrix (name withheld) D/o Kamal Dass who was brought by SI G. R. Tanwar accompanied by her mother Raj with the alleged 7 of 131 8 FIR No. 302/11 PS - Vijay Vihar history of sexual assault by a person namely Amit to BSA Hospital in casualty and she was directly referred to SR Gynae. She (PW2) was working as SR Gynae in the Hospital and she examined the victim and on general examination she found that the patient looked apprehensive. Her vitals were stable. There was a 3 cm. nail scratch mark seen on left arm (healed). No other sign of injury. On per abdomen examination Soft. On per vaginal examination - two finger easily introduced. (painful). Hymen torn. No bleeding per vaginal. Uterus normal size, firm, mobile, regular. Fornices free. No rectal injury. She also took 19 samples i.e. outer clothes, debris, body fluid, debris, nail scraping, in between fingers, breast swab, combing of pubic hair, clipping of pubic hair, matted pubic hair, vaginal secretions, cervical mucus collections, culture, washing from vagina, rectal swab, oral swab, blood, urine and after sealing the same were handed over to the SI G. R. Tanwar. The MLC of victim/prosecutrix (name withheld) is Ex. PW2/A signed by her (PW2) at point 'A'.
PW3 Dr. Kuldeep Singh, CMO, BSA Hospital, Delhi who deposed that he has been deputed on behalf of Doctor Florence Almeida 8 of 131 9 FIR No. 302/11 PS - Vijay Vihar who has now left the Hospital. He has been been working with him in the year 2011 and he has seen him writing and signing in the usual course of his duties. The MLC No. 7491 is of Amit Kumar S/o Sh. Hari Chand who was brought by Constable N. Sridhar on 06/08/2011 at about 9:00 p.m. for medical examination as he was implicated in case under section 376(G)/506 IPC. As per MLC there was no fresh injuries and the patient's sexual organs were well developed. After examination of his sexual organ, the concerned Doctor was of the opinion that no evidence to suggest that the patient cannot perform sexual intercourse. 10 Samples were collected by Dr. Florence Almeida sealed and handed over to the Police. The MLC of Amit Kumar is Ex. PW3/A signed by Doctor Florence Almeida at points 'A' and 'B'.
PW4 Smt. Raj, is the mother of the prosecutrix who deposed regarding the facts disclosed to her regarding the incident by her daughter/prosecutrix and on the investigational aspects which she noticed/joined.
PW5 Kamal Dass is the father of the prosecutrix who 9 of 131 10 FIR No. 302/11 PS - Vijay Vihar deposed regarding the facts disclosed to him regarding the incident by his daughter/prosecutrix and on the investigational aspects which he noticed/joined.
PW6 HC Chander Mohan is the Duty Officer who deposed that on 05/08/2011, he was was working as Duty Officer at Police Station Vijay Vihar from 12:00 mid night to 8:00 a.m. On that day, at about 1:30 a.m. HC Shyam Sunder brought a therir sent by SI G. R. Tanwar on the basis of which he (PW6) got recorded the computerized FIR from the Computer Operator under section 376(2)(G)/506 IPC of this case. He has brought the original FIR, and the other copy of the FIR is Ex. PW6/A signed by him at point 'A'. He has also made endorsement Ex. PW6/B on the rukka regarding registration of the FIR vide DD No. 3A and also signed by him. After the registration of the FIR the copy of the FIR and original therir were handed over to HC Shyam Sunder and he went to the spot alongwith woman SI Satya Wati.
PW7 HC Ram Singh, who deposed that on 05/08/2011, he was working as MHC(M) at Police Station Vijay Vihar. On that day, SI 10 of 131 11 FIR No. 302/11 PS - Vijay Vihar G. R.Tanwar deposited two sealed pullindas alongwith sample seal and he made entry in Register No. 19 at Serial No. 345. On the next day, SI G. R. Tanwar also deposited one pullinda and a sample seal sealed with the seal of 'SD' and he (PW7) made an entry in Register No. 19 at Serial No. 346. The photocopies of the entries is Ex. PW7/A (OSR). All the three pullindas in sealed condition alongwith sample seal were sent to FSL, Rohini through Constable Avinash vide Road Certificate No. 87/21/11 and the pullindas were received back alongwith FSL report through Constable Suresh and the result was handed over to the IO and the entries in this respect were made at point 'A' and at point 'B'. He has also brought the RC register and the copy of RC No. 87/21/11 (OSR) is Ex. PW7/B and the copy of the acknowledgment is Ex. PW7/C (OSR) given to Constable Avinash by FSL official.
PW8 Constable Avinash who deposed that on 01/09/2011 on the instruction of SI G. R.Tanwar, he took sealed pullindas and three sample seals vide Road Certificate No. 87/21/11 and deposited the same to FSL, Rohini. After depositing the same he (PW8) took the receipt from the FSL official and handed over to the MHC(M) after returning to 11 of 131 12 FIR No. 302/11 PS - Vijay Vihar the Police Station. So long as the pullindas remained in his possession, it was not tampered with.
PW9 Lady Constable Ram Bhatri who deposed that on 01/09/2011 she was posted at PS - Vijay vihar, Delhi. On that day, she alongwith prosecutrix, her parents and IO reached at Rohini Courts where prosecutrix was produced before the Court for recording of her statement u/s 164 Cr.P.C. Her statement was recorded and thereafter, prosecutrix alongwith her parents left the Rohini Court and she (PW9) alongwith IO returned to the Police Station where her statement was recorded by the IO.
PW10 Constable Anand Prakash who deposed that on 08/08/2011 he was posted at PS Vijay Vihar. On that day, he had joined the investigation with IO SI Gidda Ram. Accused Amit Kumar was lodged in the lock up of PS Rohini as there is not lock up in PS Vijay Vihar. He alongwith IO reached at PS - Rohini and accused Amit Kumar was taken out from the lockup. Accused Amit is present in the Court. From PS - Rohini, he alongwith IO and accused Amit reached at 12 of 131 13 FIR No. 302/11 PS - Vijay Vihar Sector - 24, Rohini in search of other accused. They tried to search and apprehend the other accused on instance of accused Amit but accused Amit could not succeed to trace the other accused persons. IO had also made inquiries in the locality and made efforts to trace the other accused persons but all in vain. From there, accused Amit was taken to Dr. BSA Hospital where his medical examination was conducted. From the Hospital accused was brought to Rohini Court Complex where he was produced before the Court and he was remanded to JC. IO recorded his (PW10) statement.
PW11 HC Shyam Sunder who deposed that on 04/08/2011, he was posted at PS - Vijay Vihar. On that day, prosecutrix alongwith her parents came at the PS and DD NO. 35A was recorded. Thereafter, he alongwith prosecutrix and her parents and one Lady Constable whose name he does not remember, alongwith IO reached at Dr. BSA Hospital where medical examination of prosecutrix was conducted. After the medical examination the Doctor concerned handed over the sealed pullindas sealed with the seal of 'SD' alongwith the sample seal to the IO which were taken into Police possession by the IO vide seizure memo 13 of 131 14 FIR No. 302/11 PS - Vijay Vihar Ex. PW11/A which bears his signature at point 'A'. IO after preparing rukka handed over the same to him for registration of the case and he went to PS - Vijay Vihar and got the case registered and after registration of the case returned at the spot and handed over the copy of FIR and of rukka to the IO. At the spot, the statements of the father and mother of the prosecutrix were recorded by the IO. IO prepared the site plan at the instance of the prosecutrix. Thereafter, he accompanied the IO for the search of accused Amit & Ors. but they could not be found. Thereafter, they returned to the Police Station. The case property was deposited in the Malkhana by the IO. His statement was recorded by the IO.
PW12 HC N. Sridher who deposed that on 06/08/2011, he was posted as Head Constable in PS Vijay Vihar. On that day, he alongwith SI J. R. Tanwar (be read as G. R. Tanwar) remained in the investigation of the present case and reached C & D Divider Road, Sector 24, Rohini where a secret informer informed to IO that the accused who had committed rape on 02/08/2011 is present at his house i.e. C 66, J. J. Colony, Sector 24, Rohini, Delhi, if raided he can be 14 of 131 15 FIR No. 302/11 PS - Vijay Vihar apprehended. On this IO asked 4/5 public persons to join the raiding party but none agreed and left the spot without telling their name and addresses. When they reached near House No. C 66, J. J. Colony, Sector 24, Rohini, after seeing them one person tried to slip away but they apprehended him at the instance of secret informer. He was interrogated and his name was revealed as Amit, present in the Court (correctly identified). He was arrested vide arrest memo Ex. PW12/A, his personal search was conducted vide memo Ex. PW12/B, he made disclosure statement Ex. PW12/C, bearing his (PW12) signature at points 'A'. He pointed out the place of occurrence i.e. House No. C 63, J. J. Colony, Sector 24, Rohini vide pointing out memo Ex. PW12/D, bearing his signature at point 'A'. Accused was taken to BSA Hospital for medical examination where he was medically examined and after medical Doctor handed over sealed pullinda alongwith sample seal which is seized vide memo Ex. PW12/E, bearing his signature at point 'A'. After completion of investigation the accused was brought to PS and case property deposited in the Malkhana.
PW13 SI G. R. Tanwar, is the Investigating Officer (IO) of 15 of 131 16 FIR No. 302/11 PS - Vijay Vihar the case who deposed on the investigational aspects and deposed that on 04/08/2011, he was posted as SI in PS Vijay Vihar. On that day, DD No. 35A, copy of which is Ex. PW13/A was received by him. Prosecutrix (name withheld) alongwith her parents came to PS. NGO was called in PS and counseling was done. He recorded statement of prosecutrix (name withheld) which is already exhibited as Ex. PW1/A, bearing signature of prosecutrix (name withheld) at point 'A' and bearing his (PW13) signature at point 'X'. Thereafter, he alongwith prosecutrix (name withheld), her parents, W/Constable Manita and HC Shyam Sunder reached BSA Hospital. Prosecutrix (name withheld) was medically examined. After medical examination, Doctor handed over sealed pullinda alongwith sample seal which were seized by him (PW13) vide memo Ex. PW11/A, bearing his signature at point 'X'. He collected the MLC of prosecutrix (name withheld). He prepared rukka Ex. PW13/B, bearing his signature at point 'A' and rukka was handed over to HC Shyam Sunder for getting the FIR registered. Thereafter, he alongwith prosecutrix (name withheld), her parents and Lady Constable Manita reached at the spot i.e. C 63, J. J. Colony, Sector 24, Rohini, Delhi and he prepared the site plan at the instance of prosecutrix (name 16 of 131 17 FIR No. 302/11 PS - Vijay Vihar withheld) which is Ex. PW13/C, bearing his signature at point 'A'. Crime Team was called and Crime Team inspected the spot. HC Shyam Sunder came back at the spot and handed over to him copy of FIR and original rukka. He recorded the statement of parents of prosecutrix (name withheld). The wearing clothes of the prosecutrix at the time of incident were not seized as same have been washed off. He searched for the accused Amit but not found. Thereafter, they came back to PS. Case property was deposited in the Malkhana. On 06/08/2011, he alongwith HC Shri Dher remained in the investigation of the present case and reached C & D Divider Road, Sector 24, Rohini where a secret informer informed to IO that the accused who had committed rape on 02/08/2011 is present at his house i.e. C 66, J. J. Colony, Sector 24, Rohini, Delhi, if raided he can be apprehended. On this IO asked 4/5 public persons to join the raiding party but none agreed and left the spot without telling their names and addresses. When they reached near House No. C 66, J. J. Colony, Sector 24, Rohini, after seeing them one person tried to ran away but they apprehended him at the instance of secret informer. He was interrogated and his name was revealed as Amit, present in the Court (correctly identified). He was arrested vide 17 of 131 18 FIR No. 302/11 PS - Vijay Vihar arrest memo Ex. PW12/A, his personal search was conducted vide memo Ex. PW12/B, he made disclosure statement Ex. PW12/C, bearing his signature at points 'B'. He pointed out the place of occurrence i.e. House No. C63, J. J. Colony, Sector 24, Rohini vide pointing out memo Ex. PW12/D, bearing his signature at point 'B'. Accused was taken to BSA Hospital for medical examination where he was medically examined and after medical Doctor handed over sealed pullinda alongwith sample seal which is seized vide memo Ex. PW12/E, bearing his signature at point 'B'. After completion of investigation the accused was brought to PS and case property deposited in the Malkhana. On 07/08/2011, accused Amit was produced before the Court and one day PC Remand was taken to the place of occurrence in search of coaccused but none found and on 08/08/2011 he was produced in the Court and sent to JC. On 01/09/2011, the prosecutrix (name withheld) was taken to the Court and he moved an application for recording her statement u/s 164 Cr.P.C. which is Ex. PW13/D, bearing his signature at point 'A'. Her statement was recorded and thereafter he obtained the copy of the proceedings vide application Ex. PW13/E, bearing his signature at point 'A'. The exhibits were sent to FSL through Constable Avinash. After completing investigation, challan 18 of 131 19 FIR No. 302/11 PS - Vijay Vihar was prepared and filed in the Court. Later on FSL result was collected and filed in the Court.
PW14 - Ms. Anita Chhari, Senior Scientific Officer (Biology), FSL, Rohini, Delhi who deposed that she is M.Sc. (Zoology) and having about 18 years of experience in examining the exhibits in biology division. On 01/09/2011 , three sealed parcels were received in their office in connection with the present case. The same were marked to her for examination. She examined the exhibits biologically and her report is Ex. PW14/A, bearing her signature at point 'A'. She also examined the exhibits serologically and her report is Ex. PW14/B, bearing her signature at point 'A'.
PW15 - Sh. Deepak Wason, Metropolitan Magistrate, Saket Courts, Delhi who deposed that on 01/09/2011, he was posted as Metropolitan Magistrate in Rohini Courts. On that day, an application u/s 164 Cr.P.C. for recording of statement of prosecutrix (name withheld) D/o Kamal Dass was marked to him by the Court of Sh. S. K. Sethi, MM being the 3rd Link MM of that Court. Prosecutrix (name withheld) was 19 of 131 20 FIR No. 302/11 PS - Vijay Vihar produced before him by IO SI Jiya Tanwar (be read as G. R. Tanwar) and he had identified the prosecutrix and thereafter he asked the IO to leave the Chamber. He has asked some preliminary questions to the prosecutrix about her age, education, family, social status etc. to ascertain the voluntariness of her statement and after satisfying himself that victim was making statement voluntarily, he recorded her statement Ex. PW1/B, bearing his signature at point 'X'. His proceedings in this regard is Ex. PW15/A, bearing his signature at point 'X'. He gave the certificate Ex. PW15/B, bearing his signature at point 'X'. IO was allowed to take the copy of the statement vide his application and his endorsement is at point 'X' on application Ex. PW13/B. After completing the proceedings, Ahlmad was directed to send the proceedings to the concerned Court in the sealed envelope.
PW16 - Mrs. Chanchal, T.G.T., R.P.S.K.V., Rithala, Delhi, who deposed that she has brought the summoned record. As per their record prosecutrix (name withheld) D/o Sh. Kamal Dass and Smt. Raj was admitted in their School on 02/04/2009 in class VIA vide Admission No. 2774 and as per their record her Date of Birth is 20 of 131 21 FIR No. 302/11 PS - Vijay Vihar 05/02/1997. She was admitted in their School on the basis of SLC of the previous School issued by Principal, MCD Primary School, Sector 24, 1st, Rohini, Delhi. The copy of the Admission Register is Ex. PW16/A, copy of the Admission Form is Ex. PW16/B and the copy of the SLC of the previous School is Ex. PW16/C (OSR).
PW17 - Retired SI Prem Singh R/o D36, Lord Krishna Road, Adarsh Nagar, Delhi who deposed that on 06/08/2011, he was posted as Incharge Mobile Crime Team, Outer District. On that day, after receiving the information, he alongwith his staff reached at C 63, Sector 24, J. J. Colony, Rohini where they met IO SI G. R. Tanwar alongwith staff. He inspected the spot at the instance of the IO and Constable Rajbir, Photographer took the photographs of the spot. He prepared his report which he has brought. The same is Ex. PW17/A, bearing his signature at point 'A' (Objected to as the same appears to be photocopy instead of original).
PW18 - W/Constable Manita who deposed that on 05/08/2011, she was posted as Constable in Control Room, Outer 21 of 131 22 FIR No. 302/11 PS - Vijay Vihar District. On that day after receiving the information she reached in PS Vijay Vihar. From the Police Station Vijay Vihar, she took complainant/prosecutrix (name withheld) along with IO, her mother Raj in BSA Hospital for medical examination of the complainant. Complainant/prosecutrix (name withheld) was medically examined in the Hospital and after medical examination Doctor handed over the sealed pullinda containing exhibits along with sample seal and the same were seized by the IO vide memo Ex. PW11/A bearing her signature at point 'B'. Thereafter, they reached at House no. C 63, Sector 24, Rohini, Delhi and there IO prepared the site plan at the instance of the complainant. They searched for the accused Amit but he was not found.
PW19 - Constable Rajbir who deposed that on 06/08/2011, he was posted as Constable Photographer in Mobile Crime Team, Outer District. On that day, after receiving the information, he alongwith the Mobile Crime Team reached at C 63, Sector - 24, J. J. Colony, Rohini where he met SI Jiya Tanwar (be read as G. R. Tanwar) alongwith staff. He took the six photographs of the spot at the instance of IO and Mobile Crime Team Incharge. He has brought the negatives of the 22 of 131 23 FIR No. 302/11 PS - Vijay Vihar photographs which are Ex. PW19/A1 to Ex. PW19/A6. He has also brought the photographs and the same are Ex. PW19/B1 to Ex. PW19/B6.
The testimonies of the prosecution witnesses shall be dealt with in detail during the course of appreciation of evidence.
6. Statement of accused Amit Kumar was recorded u/s 313 Cr.P.C wherein he pleaded innocence and false implication and opted to lead defence evidence. Accused in his defence examined his wife as the sole defence witness namely DW1 - Neeru W/o Sh. Amit age about 32 years, R/o RM Bagh, D73, Rani Jhasi Road, New Delhi.
DW1 - Neeru who deposed that her husband is innocent. She is a house wife. Prosecutrix (name withheld) and her mother are residing on the ground floor in the adjacent house (side wale makan mein). Her husband was falsely implicated in this case. Her husband was having pus in his private part and for this reason he had not established physical relation with her as the Doctor had advised to avoid the same. In the marriage of elder sister of prosecutrix (name withheld) 23 of 131 24 FIR No. 302/11 PS - Vijay Vihar her husband had paid a sum of Rs. 65,000/ and he also asked his friend to give 50,000/ in the marriage of elder sister of prosecutrix (name withheld). The entire family of prosecutrix (name withheld) remains engaged in wrong activity (Galat Kamo Me) therefore, no neighbour like to talk with them. She had never opened the bolt (Kundi) of house of the prosecutrix (name withheld). Her husband is totally innocent. Prosecutrix (name withheld) had never told her anything like this (Aise Koi Baat) and her husband has not done any such wrong act (Aisa Galat Kaam). Her husband does not drink Liquor (Mera Pati Daru Nhai Pita). She is having two daughters aged 9 years and 5 years. Her husband had not done any wrong act.
7. Learned Counsel for the accused submitted that there is a delay of two days seven hours in lodging the FIR and in reporting the matter to the Police by the complainant despite the fact that as per the statement of complainant in the Court wherein she deposed that on the next day of incident i.e. 03/08/2011, she had disclosed the entire facts to her mother and despite this fact the matter has not been reported to the police for the period of more than one day. The delay in reporting of the 24 of 131 25 FIR No. 302/11 PS - Vijay Vihar matter to the police has not been explained neither by the complainant PW1 nor by the parents of the prosecutrix. Learned Counsel for the accused further submitted that there is delay of 26 days in recording the statement of prosecutrix u/s 164 Cr.P.C. The prosecutrix was not produced before the Learned MM for recording statement u/s. 164 Cr.P.C. The said delay in recording the statement of prosecutrix u/s. 164 Cr.P.C. has not been explained by the investigation office, which is fatal to the prosecution. Learned Counsel for the accused further submitted that MLC of the prosecutrix is contrary to the allegation levelled in FIR. As per the MLC of prosecutrix, Doctor Ms. Deepika Jagga (PW2) observed that 'her vital were stable. There was 3 cm. nail scratch mark seen on the left arm (healed). No other sign of injury. On per abdomen examinationsoft. On per vaginal examinationtwo finger easily introduced (painfully). Hymen torn. No bleeding per vaginal. Uterus normal size, firm, mobile, regular, forenices free. No rectal injury." On the other hand, as per the statement of prosecutrix PW1, she was subjected to rape by four persons against her consent and stated her age sixteen years and she also deposed that it was the first sexual act which has been taken place in her lifetime. It is unbelievable story as per the 25 of 131 26 FIR No. 302/11 PS - Vijay Vihar medical jurisprudence that her hymen was found torn (however it was not disclosed that it was fresh or old but in the absence of fresh, it can be presumed that it was old torn). It is also hard to believe that she is admitting two fingers easily. There was no fresh injury found on her libia (labia) minora and libia (labia) majora. The MLC of prosecutrix indicates that either she was never been subjected to any sexual act or she was habitual of sexual act which is totally contrary to the version of prosecution and prosecutrix. Learned Counsel for the accused further submitted that as per the MLC of accused Amit Kumar he had been suffering from "pus discharge from pernial soft and pain on swelling of prepuse" from last eleven to twelve days. In such a circumstances a man can not perform sexual act with any girl. Doctor has wrongly given an opinion that the accused Amit is capable to perform sexual intercourse however he has not stated that whether presently on the day of examination he can perform sexual act. This entire fact indicates the theory of false implication case. Learned Counsel for the accused further submitted that as per the site plan prepared by the investigation officer Ex. as PW13/C at the instance of the prosecutrix. In the said site plan point 'A' has been sited as a place(bed) where the offence of rape 26 of 131 27 FIR No. 302/11 PS - Vijay Vihar has been committed. However from the photographs taken by the photographer showing that there is no bed any where in the house. However, the mattress were lying on the floor. IO of the case has stated that the place of occurrence/flat in question was a two bedroom flat. However, the said flat has not been sited in the site plan because it was a single room flat. The said material fact also indicates the false version of prosecution. Learned Counsel for the accused further submitted that the police has not arrested the remaining three other accused persons despite the fact that the prosecutrix had stated in FIR and to the doctor who prepared her MLC about other three boys alongwith the accused that they all were involved in the offence and mentioned in FIR. The Prosecutrix had also deposed in her crossexamination that "after about two minute of accused Amit leaving, he had came back with other three boys". After the arrest of accused Amit the disclosure statement of Amit was recorded by the IO on 06/08/11 as Ex. PW12/C in which he had disclosed that he can get arrested those three boys. Thereafter, the IO had produced the accused Amit before the Learned MM and applied for two days police remand in order to arrest the other three boys and to know their names and addresses. One day police remand was granted 27 of 131 28 FIR No. 302/11 PS - Vijay Vihar and thereafter no further disclosure statement was recorded nor any other persons were arrested. The entire facts shows that the prosecutrix is deposing falsely. Learned Counsel for the accused further submitted that as per the disclosure of accused Amit that on dated 02/08/2011 accused had taken the prosecutrix to the house of Sanju situated at C 18, Sector 24, Rohini, where the Sanju and his father were present and he returned back and on the way he had taken the prosecutrix in his lap and kissed her. Thereafter, she had left the house of Sanju and he followed her. Thereafter, prosecutrix came to her house and he also entered into the house and committed rape upon her, after closing (tying) her mouth and eyes by bandage (Chunni). He also disclosed that he called two other boys and those boys also committed rape with prosecutrix. On the other hand, it is unanswerable that despite the said disclosure why the IO of the case had not interrogated Sanju and his father residents of C 18, Sector 24, Rohini, New Delhi and why the IO had not interrogated the prosecutrix about the fact of disclosure. Learned Counsel for the accused further submitted that as per the prosecutrix she was studying in 8th class and her age was 16 years at the time of the incident however the document obtained from the school the date of birth of the prosecutrix 28 of 131 29 FIR No. 302/11 PS - Vijay Vihar were found 05/02/1997 as per this her age should be 14 years 6 month on the day of incident and on the other hand as per the document which is part of chargesheet (filed by the IO) the date of sterilization of the mother of prosecutrix is 06/12/1994, this document is issued by the Smt. Sucheta Kriplani Hospital which bears the signature of mother of prosecutrix namely Raj (admitted by PW2 Raj, mother of prosecutrix). As per the document the age of the prosecutrix should be 16 years 8 months. The entire contradictory documents shows the conduct of the prosecutrix and her family members that they are habitual of making false statements. Hence, the testimonies of the witnesses are liable to be discard. Learned Counsel for the accused further submitted that the prosecutrix has deposed in her statement u/s 164 Cr.P.C. that she had narrated the story to the wife of the accused immediately after the incident and the wife of Amit had opened the kundi (bolt). Despite this fact in order to verify the truth why the IO had not interrogated the wife of accused Amit. The said act is fatal to the prosecution and was examined as DW1. Learned Counsel for the accused further submitted that PW14 Anita Chhari has exhibited the FSL report and on perusal of the FSL report there is nothing incriminating against the accused.
29 of 131 30 FIR No. 302/11 PS - Vijay Vihar Hence this issue also goes against the prosecution. Learned Counsel for the accused further submitted that the conduct of the person who had committed such a heinous crime cannot be in a manner that after committing the alleged crime he remained at home and helped the father of the prosecutrix on the same day of incident. This fact is very much proved from the testimony of PW5 (father of the prosecutrix). The said conduct of the accused proved that he had not committed any offence with the daughter of PW5. Learned Counsel for the accused further submitted that the PW5 (Father of the prosecutrix) as well as PW4 mother of the prosecutrix admitted the suggestions that they had taken loan of Rs. 65,000/ from the accused at the time of marriage of her elder daughter. But had denied the suggestion that when the accused demanded back his amount he had been implicated in the present case. Hence, the false implication of the accused in the present case is duly proved. Learned Counsel for the accused further submitted that in the present case the investigation carried out by the IO was totally unfair and he had completely failed to investigate the case in a fair manner. This fact is proved from the fact that he had not filed any crime team report and photographs of the scene of crime, along with the charge sheet 30 of 131 31 FIR No. 302/11 PS - Vijay Vihar neither cited crime team in charge, photographer, Learned MM and Principal of the school in the list of witnesses. However, the crime team in charge had stated that he had handed over the crime team report to the IO immediately after the inspection of the spot; Photographer also stated that he had handed over the photographs of the scene of crime to the IO as per the site plan point 'A' was shown as a bed on which the offence was occurred however there was no bed in the photographs taken by the PW19; IO of the case had not verified document mark DX1 (certificate of sterilization of the mother of the prosecutrix) from PW1, 4 & 5. The IO of the case had not verified the disclosure statement and had not investigated as per disclosure of the accused as well as 164 statement given by the prosecutrix; IO had not recorded the statement of the wife of the accused; IO had not recorded the statement of Sanju and his father; IO had not recorded the statement of the neighbours whose house are situated very close to place of occurrence; IO had not seized any chunni from which mouth, eyes, hands of prosecutrix was entangled by the accused; IO had not seized any bed sheet which was blood stained; IO did not make any effort to join the investigation by the public witnesses or neighbours; Why IO did not arrest the remaining three 31 of 131 32 FIR No. 302/11 PS - Vijay Vihar other accused persons despite this fact that there were three others persons were involved in the offence by the statement of the prosecutrix and as per disclosure why the IO did not proceed further nor recorded any supplementary disclosure of accused and as per the FIR, rukka was sent from the spot and as per his (IO) deposition in crossexamination that rukka was sent from hospital but as per rukka her (prosecutrix) statement was recorded in the Police Station. Learned Counsel for the accused further submitted that no chunni were recovered by the IO nor any efforts were made to recover the chunnis in order to verify the truth. Learned Counsel for the accused further submitted that PW4 and PW5 are the hearsay witnesses hence there is no value in the eyes of law. However the testimonies of these two witnesses have clearly proved the fact of sterilization, taken of loan amount and the fact that they were discharged from the hospital at 2:00 p.m. and also admitted the fact that the distance of the max hospital and there house is hardly taken fifteen minutes by TSR (Auto). Learned Counsel for the accused further submitted that in the examinationinchief when she was crossed by the Learned Addl. PP the prosecutrix admitted that the accused Amit after committing rape upon her had also called three other associates and they 32 of 131 33 FIR No. 302/11 PS - Vijay Vihar had also committed rape. On the other hand in 164 Cr.P.C. it is totally contrary to this fact. It is also unbelievable that if nobody at home and her parents are in hospital, why the main gate of the house was not bolted from the inside? Why the brother of the prosecutrix had gone to the School? It is deposed by the prosecutrix that her mouth hands were tied by the different chunnis and her eyes were tied by the another chunni. It is submitted that there were three chunnis and three chunnis were not recovered neither it was clarified that what was their colour and how the accused easily got the three chunnis at the same time and how he succeeded to tie three chunnis forcibly at the three different parts of the body. Prosecutrix deposed that no such incident had ever happened/taken place with her. It is contrary to the MLC. Prosecutrix deposed that due to the said act blood oozed out and the bed sheet was blood stained. On the contrary as per MLC there were no abrasions or injury on a private parts. It is admitted by the prosecutrix that there is a land line telephone and a mobile but she did not know the number of the phones. Hence the testimony is unreliable. Prosecutrix further deposed that she had stated the whole incident to Neeru the wife of accused. The said act is totally unbelievable. She deposed that she had got the bold 33 of 131 34 FIR No. 302/11 PS - Vijay Vihar opened from the wife of accused. This fact is also unbelievable that when she was without clothes her hands were tied and her eyes and mouth were closed from the chunnis how she could make the door opened by making call for help. Hence the testimony of this witness is unreliable. It is also unbelievable that a person after committing rape calls three unknown boys and involved them into a same offence with the prosecutrix. Prosecutrix deposed that after committing first rape by the accused he went away from the house and came back after some minutes with three other persons then why she did not make any effort to get free from the clutches of the accused despite the fact that the neigbours house is very close to the scene of crime. Prosecutrix deposed in examination in chief that she had seen accused Amit alone since she was raped four times so she was in impression that she was raped by four persons. She had got bolt opened after calling Neeru Didi (wife of accused). The said story is unbelievable that when two neighbours are situated at the distance of 56 ft. from the house of the prosecutrix then why she called to Neeru Didi whose house is situated upon the first floor. Hence, the testimony of this witness is unreliable. Prosecutrix deposed that on 03/08/2011 accused Amit abused her and uttered that (KOI RANDI 34 of 131 35 FIR No. 302/11 PS - Vijay Vihar UPAR NAHI CHARNI CHAHIYE). Hence the testimony of this witness is unreliable because no person would not dare to abuse that girl with whom one day prior he has committed the rape along with three boys. It is admitted by the prosecutrix that the marriage of the elder sister was on 16/02/2010 and it was admitted that PW4 & PW5 that a loan was taken from the accused and the friend of the accused for the marriage. From above, it is very much clear and proved that the testimony of the prosecutrix (PW1) is totally untrustworthy, unreliable and deserved to be discarded. Prosecutrix is also not entitled to get the benefit of 113A of Evidence Act and in such circumstances no presumptions can be drawn in favour of the prosecutrix. From the latest judgments of our own High Court and the Apex Court, it was viewed by the courts that the testimony of the prosecutrix required more scrutiny because if the prosecutrix is to be treated as a victim or injured in rape cases that in the similar fashion the accused is also an injured and victim because it is his own dignity which was harmed by levelling the false allegations by the prosecutrix. Hence, before taking any decision the Courts are required to evaluate the evidence parallel with keeping in mind that accused who is facing trial may be an innocent person and may have been implicated falsely.
35 of 131 36 FIR No. 302/11 PS - Vijay Vihar Learned Counsel for accused prayed for acquittal of accused on all the charges levelled against him.
Learned Counsel for the accused referred to the cases and are reported as "Rajjoo & Ors. Vs. State of M.P.", 2009 AIR (SC) 858, "Mumtaj Vs. State of Delhi", CR Appeal No. 214/2011, decided on 22/05/2013 (DHC) and "Ashok Narang Vs. State", 2012 [1] JCC 482.
8. While the Learned Addl. PP for the State, on the other hand, submitted that the testimonies of the prosecution witnesses are cogent and consistent and the contradictions and discrepancies as pointed out are minor and not the material one's and do not affect the credibility of the witnesses and the prosecution has proved its case beyond reasonable doubt.
9. I have heard Ms. Purnima Gupta, Learned Addl. PP for the State and Sh. L. K. Verma, Learned Counsel for the accused and have also carefully perused the entire record.
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10. The charge for the offences punishable u/s 376/506 IPC against the accused Amit Kumar is that on 02/08/2011, at about 2:00 p.m. at House No. C 63, J. J. Colony, Sector - 24, Rohini, Delhi he forcibly raped the prosecutrix aged about 16 years against her wishes and without her consent and he also called three boys who also committed rape on the person of the prosecutrix turn wise and he also further criminally intimidated her not to disclose the fact of rape to anyone otherwise he would kill her.
11. It is to be mentioned that as a matter of prudence, in order to avoid any little alteration in the spirit and essence of the depositions of the material witnesses, during the process of appreciation of evidence at some places their part of depositions have been reproduced, in the interest of justice.
AGE OF THE PROSECUTRIX
12. PW1 - prosecutrix, in her examinationinchief has deposed that, "At the time of the incident, I was studying in 8th Class in Rana Pratap Sarvodaya Kanya Vidhalaya, Rithala, Sector - 5, Rohini, Delhi. I 37 of 131 38 FIR No. 302/11 PS - Vijay Vihar do not recollect my date of birth".
PW4 - Smt. Raj, mother of the prosecutrix in her examinationinchief has deposed that, "My daughter was about 16 years of age at the time of incident. I do not remember her date of birth".
During her crossexamination, PW4 - Smt. Raj has deposed that : "I belong to Delhi by birth. My marriage took place about 22 years back exact date I do not recollect. My husband is in service at Connaught Place. I do not know as to how much time has been left in his retirement. My husband is aged about 55 years presently. There is a gap of about five years between the age of me and that of my husband. We have four children. Prosecutrix is my youngest child of 4th number. There is difference in age of about one year in the age of my children. Prosecutrix has attended the School upto8th class. She has left the School this year just one week before the final examination. It is correct that I was not at my home at the time of the incident. I am deposing in the Court as was told to me by my daughter the prosecutrix. I had not under gone the tubectomy operation on 28/11/1996 (be read as 28/11/1994. I have seen the photocopy of certificate sterilization. It bears my signature at point 'A' and the photocopy of the said document is Mark DX1."
PW13 - SI G. R. Tanwar, during his crossexamination recorded on 14/03/2013 has deposed that the document Mark DX1 was 38 of 131 39 FIR No. 302/11 PS - Vijay Vihar handed over by the mother of the prosecutrix.
On careful perusal and analysis of the testimonies of PW1 - prosecutrix, PW4 - Smt. Raj and PW13 - SI G. R. Tanwar, there is nothing in their crossexamination so as to impeach their creditworthiness. Although, on the photocopy of the sterilization certificate Mark DX1, PW4 - Smt. Raj has admitted her signature at point 'A' but this by itself does not prove the contents of the document. Accused has failed to prove the document Mark DX1 in accordance with law on which he has heavily relied upon. For such failure accused is to blame himself and none else.
Section 106 of the Indian Evidence Act, 1872 provides for burden of proving fact especially within knowledge.
It reads as under : "106. Burden of proving fact especially within knowledge. When any fact is especially within the knowledge of any person, the burden of proving that fact is upon him."
PW16 - Mrs. Chanchal, T.G.T., R.P.S.K.V., Rithala, Delhi, 39 of 131 40 FIR No. 302/11 PS - Vijay Vihar has deposed that she has brought the summoned record. As per their record prosecutrix (name withheld) D/o Sh. Kamal Dass and Smt. Raj was admitted in their School on 02/04/2009 in Class VIA vide Admission No. 2774 and as per their record her Date of Birth is 05/02/1997. She was admitted in their School on the basis of SLC of the previous School issued by Principal, MCD Primary School, Sector 24, 1st, Rohini, Delhi. The copy of the Admission Register is Ex. PW16/A, copy of the Admission Form is Ex. PW16/B and the copy of the SLC of the previous School is Ex. PW16/C (OSR).
During her crossexamination, PW16 - Mrs. Chanchal has deposed that, "It is correct hat document Ex. PW16/A to Ex. PW16/C are not in my handwriting and they were not prepared in my presence".
There is nothing in the crossexamination of PW16 - Mrs. Chanchal, so as to impeach her creditworthiness. She has proved, as per the record, the date of birth of the prosecutrix (name withheld) as 05/02/1997. Nor any evidence to the contrary has been produced or proved on the record on behalf of the accused.
In the circumstances, it stands established on the record 40 of 131 41 FIR No. 302/11 PS - Vijay Vihar that the date of birth of PW1 prosecutrix is 05/02/1997.
As the date of alleged incident is 02/08/2011 and the date of birth of prosecutrix is 05/02/1997, on simple arithmetical calculation, the age of prosecutrix comes to 14 years, 05 months and 27 days as on the date of incident on 02/08/2011.
It is also to be noticed that the Hon'ble Supreme Court in case State of Maharashtra Vs. Gajanan Hemant Janardhan Wankdhede (2008) 8 SCC 38 has held as under : "13. .....On the basis of the evidence of the Headmaster and the original school leaving certificate and the school register which were produced the High Court came to abrupt conclusion that normally for various reasons the guardians to understate the age of their children at the time of admission in the school. There was no material or basis for coming to this conclusion. The High Court in the absence of any evidence to the contrary should not have come to hold that the date of birth of the prosecutrix was not established and the school leaving certificate and the school register are not conclusive.
14. Interestingly, no question was put to the victim in cross examination about the date of birth. The High Court also noted that no document was produced at the time of admission and a horoscope was purportedly produced. There is no requirement that at the time of 41 of 131 42 FIR No. 302/11 PS - Vijay Vihar admission documents are to be produced as regards the age of the student....."
In view of above and in the circumstances, it stands established on record that PW1 prosecutrix was aged 14 years, 05 months and 27 days as on the date of alleged incident on 02/08/2011.
13. Learned Counsel for the accused submitted that as per the prosecutrix she was studying in 8th class and her age was 16 years at the time of the incident however the document obtained from the school the date of birth of the prosecutrix were found 05/02/1997 as per this her age should be 14 years 6 month on the day of incident and on the other hand as per the document which is part of chargesheet (filed by the IO) the date of sterilization of the mother of prosecutrix is 06/12/1994, this document is issued by the Smt. Sucheta Kriplani Hospital which bears the signature of mother of prosecutrix namely Raj (admitted by PW2 Raj, mother of prosecutrix). As per the document the age of the prosecutrix should be 16 years 8 months. The entire contradictory documents shows the conduct of the prosecutrix and her family members 42 of 131 43 FIR No. 302/11 PS - Vijay Vihar that they are habitual of making false statements. Hence, the testimonies of the witnesses are liable to be discard.
I have carefully perused and analysed the evidence on record.
As to what has been discussed, analysed and detailed here inabove under the heading, "Age Of Prosecutrix", at the cost of repetition, wherein it stands established on record that PW1 prosecutrix was aged 14 years, 05 months and 27 days as on the date of alleged incident on 02/08/2011, no further discussion is called for on the said plea.
In the circumstances, there is no substance in the plea so raised by the Learned Counsel for the accused. MEDICAL EVIDENCE OF THE PROSECUTRIX
14. PW2 Dr. Deepika Jagga, S.R. Gynae. BSA Hospital, Rohini, Delhi has deposed that on 04/08/2011 at about 10:00 p.m. victim/prosecutrix (name withheld) D/o Kamal Dass who was brought by 43 of 131 44 FIR No. 302/11 PS - Vijay Vihar SI G. R. Tanwar accompanied by her mother Raj with the alleged history of sexual assault by a person namely Amit to BSA Hospital in casualty and she was directly referred to SR Gynae. She (PW2) was working as SR Gynae in the Hospital and she examined the victim and on general examination she found that the patient looked apprehensive. Her vitals were stable. There was a 3 cm. nail scratch mark seen on left arm (healed). No other sign of injury. On per abdomen examination Soft. On per vaginal examination - two finger easily introduced.(painful). Hymen torn. No bleeding per vaginal. Uterus normal size, firm, mobile, regular. Fornices free. No rectal injury. She also took 19 samples i.e. outer clothes, debris, body fluid, debris, nail scraping, in between fingers, breast swab, combing of pubic hair, clipping of pubic hair, matted pubic hair, vaginal secretions, cervical mucus collections, culture, washing from vagina, rectal swab, oral swab, blood, urine and after sealing the same were handed over to the SI G. R. Tanwar. The MLC of victim/prosecutrix (name withheld) is Ex. PW2/A signed by her (PW2) at point 'A'.
There is nothing in the crossexamination of PW2 Dr. 44 of 131 45 FIR No. 302/11 PS - Vijay Vihar Deepika Jagga so as to impeach her creditworthiness. On careful perusal and analysis of the testimony of PW2 - Dr. Deepika Jagga, it is found to be clear, cogent and convincing and she has deposed regarding the facts as to what she observed during the gynaecological examination of the prosecutrix. There is nothing in her testimony to suggest that she had any animus against the accused to falsely implicate him in the case.
In view of above and in the circumstances, the medical/gynaecological examination of PW1 - prosecutrix vide MLC Ex. PW2/A stands proved on the record.
VIRILITY OF THE ACCUSED
15. PW3 Dr. Kuldeep Singh, CMO, BSA Hospital, Delhi has deposed that he has been deputed on behalf of Doctor Florence Almeida who has now left the Hospital. He has been been working with him in the year 2011 and he has seen him writing and signing in the usual course of his duties. The MLC No. 7491 is of Amit Kumar S/o Sh. Hari Chand who was brought by Constable N. Sridhar on 06/08/2011 at about 9:00 p.m. for medical examination as he was implicated in case under 45 of 131 46 FIR No. 302/11 PS - Vijay Vihar section 376(G)/506 IPC. As per MLC there was no fresh injuries and the patient's sexual organs were well developed. After examination of his sexual organ, the concerned Doctor was of the opinion that no evidence to suggest that the patient cannot perform sexual intercourse. 10 Samples were collected by Dr. Florence Almeida sealed and handed over to the Police. The MLC of Amit Kumar is Ex. PW3/A signed by Doctor Florence Almeida at points 'A' and 'B'.
During his crossexamination, PW3 - Dr. Kuldeep Singh has deposed that, "I have not personally examined the patient and I am deposing as per the contents of the MLC Ex. PW3/A".
There is nothing in the crossexamination of PW3 - Dr. Kuldeep Singh so as to impeach his creditworthiness.
In view of above and in the circumstances, it stands proved on the record that accused Amit Kumar was capable to perform sexual intercourse.
BIOLOGICAL AND SEROLOGICAL EVIDENCE
16. PW14 - Ms. Anita Chhari, Senior Scientific Officer 46 of 131 47 FIR No. 302/11 PS - Vijay Vihar (Biology), FSL, Rohini, Delhi has proved the biological and serological reports Ex. PW14/A and Ex. PW14/B respectively signed by her at points 'A'.
As per biological report Ex. PW14/A the description of articles contained in parcel and result of analyses reads as under : DESCRIPTION OF ARTICLES CONTAINED IN PARCEL Parcel '1' : One sealed cardboard box sealed with the seal of "SD" containing unsealed envelopes marked in this laboratory as envelope '1a', '1b', '1c', '1d', '1e', '1f', '1g', '1h', '1i', '1j', '1k', '1l', '1m', '1n', '1o', '1p' and '1q'.
Envelope '1a' : One envelope labelled as 'Step 4 Debri collection etc.' containing one white paper sheet, nothing found inside the envelope, returned in original without examination. Envelope '1b' : One envelope labelled as 'Step 4 Nail Scrapping etc.' containing exhibits '1b1' and '1b2'.
Exhibit '1b1' : Nail clippings, wrapped in a white paper sheet.
Exhibit '1b2' : One nail cutter.
Envelope '1c' : One envelope labelled as 'Step 4 Body Fluid
Collection etc.' containing exhibit '1c'.
Exhibit '1c' : Dirty cotton wool swab along with fungal
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growth on a wooden stick kept in a plastic tube
Envelope '1d' : One envelope labelled as 'Step 4 InBetween
Fingers etc.' containing exhibit '1d'.
Exhibit '1d' : Cotton wool swab on a wooden stick, wrapped
in a white paper sheet.
Envelope '1e' : One envelope labelled as 'Step 4 Debri
Collection etc.' containing one forceps wrapped in a white paper sheet, returned in original without examination.
Envelope '1f' : One envelope labelled as 'Step 5 Breast Swab etc.' containing exhibit '1f'.
Exhibit '1f' : Cotton wool swab on a wooden stick. Envelope '1g' : One envelope labelled as 'Step 6 Combing of Pubic Hair etc.' containing exhibit '1g'.
Exhibit '1g' : three strands of black hair and one comb wrapped in a white paper sheet.
Envelope '1h' : One envelope labelled as 'Step 7 Clipping of Pubic Hair etc.' containing exhibit '1h'.
Exhibit '1h' : A few strands of black hair, wrapped in a white paper sheet.
Envelope '1i' : One envelope labelled as 'Step 8 Matter Pubic Hair etc.' containing exhibit '1i'.
Exhibit '1i' : A few strands of black hair, wrapped in a white paper sheet.
48 of 131 49 FIR No. 302/11 PS - Vijay Vihar Envelope '1j' : One envelope labelled as 'Step 9 Vaginal Secretion [V] etc.' containing exhibits '1j1', '1j2' and '1j3'.
Exhibit '1j1' : Two microslides having faint smear, kept in a and '1j2' plastic cover. Exhibit '1j3' : Cotton wool swab on a wooden stick. Envelope '1k' : One envelope labelled as 'Step 9 Cervical
Mucus Collection [C]' containing exhibit '1k'. Exhibit '1k' : Cotton wool swab on a wooden stick, kept in a plastic tube.
Envelope '1l' : One envelope labelled as 'Step 10 Culture etc.' containing exhibits '1l'.
Exhibit '1l' : Wet cotton wool swab on a plastic stick in a gelatinious medium, kept in a plastic tube.
Envelope '1m' : One envelope labelled as 'Step 11 Washing from Vagina etc.' containing exhibit '1m'.
Exhibit '1m' : Whitish liquid material, kept in a plastic container.
Envelope '1n' : One envelope labelled as 'Step 12 Rectal Examination' containing exhibits '1n1', '1n2' and '1n3'.
Exhibit '1n1' : Two microslides having faint smear, kept in a
and '1n2' plastic cover
Exhibit '1n3' : Cotton wool swab on a wooden stick, kept in a
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plastic tube.
Envelope '1o' : One envelope labelled as 'Step 13 Oral Swab'
containing exhibits '1o1', '1o2' and '1o3'.
Exhibit '1o1' : Two microslides having faint smear, kept in a
and '1o2' plastic cover
Exhibit '1o3' : Cotton wool swab on a wooden stick.
Envelope '1p' : One envelope labelled as 'Step 14 Blood
Collection of Victim' containing exhibits '1p1' and '1p2'. Exhibit '1p1' : Dark brown foul smelling liquid, kept in a test tube.
Exhibit '1p2' : Dark brown foul smelling liquid, kept in a test tube.
Envelope '1q' : One envelope labelled as 'Step 15 Urine and Oxalate Blood Vial' containing exhibits '1q1' and '1q2'. Exhibit '1q1' : Yellowish liquid material, kept in a plastic container.
Exhibit '1q2' : Blackish brown foul smelling liquid, kept in a test tube.
Parcel '2' : One sealed polythene bag parcel sealed with the seal of "SD" containing one unsealed envelope marked in this laboratory as envelope 2.
Envelope '2' : One envelope labelled as 'OUTER CLOTHING STEP 3A etc.' containing exhibits '2a' and '2b', wrapped in a white paper sheet.
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Exhibit '2a' : One jeans pant.
Exhibit '2b' : One lady's shirt.
Parcel '4' : One sealed cloth parcel sealed with the seal
of "SD" containing exhibits '4a', '4b', '4c', '4d', '4e', '4f', '4g', '4h', '4i', '4j' and '4k'.
Exhibit '4a' : One underwear. Exhibit '4b' : One banian. Exhibit '4c1' : Two microslides having faint smear, wrapped in and '4c2' a gauze cloth piece. Exhibit '4d' : Cotton wool swab on a wooden stick, kept in a
plastic tube labelled as 'Urethral swab etc.'. Exhibit '4e' : Gauze cloth piece having dark brown stains. Exhibit '4f' : Dark brown foul smelling liquid, kept in a test tube labelled as 'Blood in E vial Amit Kumar etc.'.
Exhibit '4g' : A few strands of black hair, kept in a test tube labelled as 'Plucked scalp hair Amit Kumar etc.'.
Exhibit '4h' : A few strands of black hair, kept in a test tube labelled as 'Combed scalp hair Amit Kumar etc.'.
Exhibit '4i' : A few strands of black hair, kept in a test tube labelled as 'Plucked pubic hair Amit Kumar etc.'.
Exhibit '4j' : A few strands of black hair, kept in a test tube labelled as 'Combed pubic hair Amit Kumar 51 of 131 52 FIR No. 302/11 PS - Vijay Vihar etc.'.
Exhibit '4k' : A very small dusty material, kept in a test tube labelled as 'Under nail scrapings'.
RESULT OF ANALYSIS
1. Semen could not be detected on exhibits '1b1', '1b2', '1c', '1d', '1f', '1g', '1h', '1i', '1j1', '1j2', '1j3', '1k', '1l', '1m', '1n1', '1n2', '1n3', '1o1', '1o2', '1o3', '1q1', '2a', '2b', '4a', '4b', '4c1', '4c2', '4d', '4g', '4h', '4i', '4j' & '4k'.
2. Blood was detected on exhibits '1p1', '1p2', '1q2', '2a', '4e' & '4f'.
3. Blood could not be detected on exhibits '1b1', '1b2', '1c', '1d', '1f', '1g', '1h', '1i', '1j3', '1k', '1l', '1m', '1n3', '1o3', '1q1', '2b', '4a', '4b', '4d', '4g', '4h', '4i', '4j' & '4k'.
4. Vaginal epithelial cells could not be detected on exhibits '4a', '4b', '4c1', '4c2', '4d', '4g', '4h', '4i', '4j' and '4k'.
5. Report of serological analysis in original is attached herewith. NOTE : Remnants of the exhibits have been sealed with the seal of 'AC FSL DELHI'.
The serological report Ex. PW14/B reads as under : Exhibits Species of origin ABO Grouping/Remarks '1p1' Blood sample Sample was putrefied hence no opinion '1p2' Blood sample Sample was putrefied hence no opinion '1q2' Blood sample Sample was putrefied hence no opinion 52 of 131 53 FIR No. 302/11 PS - Vijay Vihar '2a' Jeans pant No reaction '4e' Gauze cloth piece Human Inconclusive result '4f' Blood sample Sample was putrefied hence no opinion On careful perusal and analysis of the biological and serological evidence on record, it clearly shows that blood was detected on exhibit '1p1' (Dark brown foul smelling liquid of the prosecutrix), exhibit '1p2' (Dark brown foul smelling liquid of the prosecutrix), exhibit '1q2' (Blackish brown foul smelling liquid of the prosecutrix), exhibit '2a' (Jeans pant of the prosecutrix), exhibit '4e' (Gauze cloth piece of the accused) and exhibit '4f' (Blood in E vial of accused); blood could not be detected on exhibit '1b1' (Nail clippings of the prosecutrix), exhibit '1b2' (Nail cutter of the prosecutrix), exhibit '1c' (Dirty cotton wool swab alongwith fungal growth of the prosecutrix), exhibit '1d' (Cotton wool swab on a wooden stick of the prosecutrix), exhibit '1f' (Breast swab of the prosecutrix), exhibit '1g' (Three strands of black hair and one comb of the prosecutrix), exhibit '1h' (A few strands of black hair of the prosecutrix), exhibit '1i' (A few strands of black hair of the prosecutrix), exhibit '1j3' (Cotton wool swab of the prosecutrix), exhibit '1k' (Cotton 53 of 131 54 FIR No. 302/11 PS - Vijay Vihar wool swab of the prosecutrix), exhibit '1l' (Wet cotton wool swab on a plastic stick in a gelatinious medium of the prosecutrix), exhibit '1m' (Whitish liquid material of the prosecutrix), exhibit '1n3' (Cotton wool swab of the prosecutrix), exhibit '1o3' (cotton wool swab of the prosecutrix), exhibit '1q1' (Yellowish liquid material of the prosecutrix), exhibit '2b' (Lady's shirt of the prosecutrix), exhibit '4a' (Underwear of the accused), exhibit '4b' (Banian of the accused), exhibit '4d' (Urethral swab of the accused), exhibit '4g' (Plucked scalp hair of the accused), exhibit '4h' (Combed scalp hair of the accused), exhibit '4i' (Plucked pubic hair of the accused), exhibit '4j' (Combed pubic hair of the accused) & exhibit '4k' (Under nail scrapings of the accused); Vaginal epithelial cells could not be detected on exhibit '4a' (Underwear of the accused), exhibit '4b' (Banian of the accused), exhibit '4c1' (Microslide having faint smear of the accused), exhibit '4c2' (Microslide having faint smear of the accused), exhibit '4d' (Urethral swab of the accused), exhibit '4g' (Plucked scalp hair of the accused), exhibit '4h' (Combed scalp hair of the accused), exhibit '4i' (Plucked pubic hair of the accused), exhibit '4j' (Combed pubic hair of the accused) and exhibit '4k' (Under nail scraping of the accused) and semen could not be detected on exhibit 54 of 131 55 FIR No. 302/11 PS - Vijay Vihar '1b1' (Nail clippings of the prosecutrix), exhibit '1b2' (Nail cutter of the prosecutrix), exhibit '1c' (Dirty cotton wool swab alongwith fungal growth of the prosecutrix), exhibit '1d' (cotton wool swab of the prosecutrix), exhibit '1f' (Cotton wool swab of the prosecutrix), exhibit '1g' (Three strands of black hair and one comb of the prosecutrix), exhibit '1h' (A few strands of black hair of the prosecutrix), exhibit '1i' (A few strands of black hair of the prosecutrix), exhibit '1j1' (Microslide having faint smear of the prosecutrix), exhibit '1j2' (Microslide having faint smear of the prosecutrix), exhibit '1j3' (Cotton wool swab of the prosecutrix), exhibit '1k' (Cotton wool swab of the prosecutrix), exhibit '1l' (Wet cotton wool swab on a plastic stick in a gelatinious medium of the prosecutrix), exhibit '1m' (Whitish liquid material of the prosecutrix), exhibit '1n1' (Microslide having faint smear of the prosecutrix), exhibit '1n2' (Microslide having faint smear of the prosecutrix), exhibit '1n3' (Cotton wool swab of the prosecutrix), exhibit '1o1' (Microslide having faint smear of the prosecutrix), exhibit '1o2' (Microslide having faint smear of the prosecutrix), exhibit '1o3' (Cotton wool swab of the prosecutrix), exhibit '1q1' (Yellowish liquid material of the prosecutrix), exhibit '2a' (Jeans pant of the prosecutrix), exhibit '2b' (Lady's shirt of 55 of 131 56 FIR No. 302/11 PS - Vijay Vihar the prosecutrix), exhibit '4a' (Underwear of the accused), exhibit '4b' (Banian of the accused), exhibit '4c1' (Microslide having faint smear of the accused), exhibit '4c2' (Microslide having faint smear of the accused), exhibit '4d' (Urethral swab of the accused), exhibit '4g' (Plucked scalp hair of the accused), exhibit '4h' (Combed scalp hair of the accused), exhibit '4i' (Plucked pubic hair of the accused), exhibit '4j' (combed pubic hair of the accused) & exhibit '4k' (Under nail scraping of the accused). As per the serological report Ex. PW14/B 'Sample was putrefied hence no opinion' could be given on the exhibit '1p1' (Dark brown foul smelling liquid of the prosecutrix), '1p2' (Dark brown foul smelling liquid of the prosecutrix), '1q2' (Blackish brown foul smelling liquid of the prosecutrix) and '4f' (Blood in E vial of the accused).
As per the biological report Ex. PW14/A, with regard to the description of the articles contained in the parcels, it is noticed that Parcel No. 1 and parcel no. 2 belong to PW1 prosecutrix which were seized vide seizure memo Ex. PW11/A dated 05/08/2011 and parcel no. 4 belongs to accused Amit Kumar which was seized vide 56 of 131 57 FIR No. 302/11 PS - Vijay Vihar seizure memo Ex. PW12/E dated 06/08/2011.
The perusal of the MLC of PW1 - prosecutrix Ex.
PW2/A dated 04/08/2011 indicates that in the alleged history, it is mentioned therein that victim has taken bath and urinated and washed her clothes after the incident on 02/08/2011 and on the next day on 03/08/2011, she also took bath.
It is also to be noticed that the date of the alleged incident is 02/08/2011 and the medical examination of PW1 - prosecutrix was conducted on 04/08/2011 at 10:00 p.m. and the exhibits contained in parcel nos. 1 & 2 as detailed hereinabove of the prosecutrix were collected on 04/08/2011 by the Doctor and were seized by the Police vide seizure memo Ex. PW11/A, dated 05/08/2011. Coupled with this, as per the alleged history of the patient/prosecutrix, vide MLC Ex. PW2/A dated 04/08/2011 wherein it is mentioned that victim has taken bath and urinated and washed her clothes after the incident on 02/08/2011 and on the next day on 03/08/2011, she also took bath, during this period from the date of incident on 02/08/2011 till 04/08/2011, when her medical examination 57 of 131 58 FIR No. 302/11 PS - Vijay Vihar was conducted and the exhibits were seized, it cannot be ruled out that prosecutrix must have answered the call of nature a number of times, must have urinated a number of times and must have taken bath a number of times and for the said reason, it appears that semen could not be detected on exhibits '1b1', '1b2', '1c', '1d', '1f', '1g', '1h', '1i', '1j1', '1j2', '1j3', '1k', '1l', '1m', '1n1', '1n2', '1n3', '1o1', '1o2', '1o3', '1q1', '2a' & '2b' and blood could not be detected on exhibits '1b1', '1b2', '1c', '1d', '1f', '1g', '1h', '1i', '1j3', '1k', '1l', '1m', '1n3', '1o3', '1q1' & '2b' of the prosecutrix.
17. Learned Counsel for the accused submitted that PW14 Anita Chhari has exhibited the FSL report and on perusal of the FSL report there is nothing incriminating against the accused. Hence this issue also goes against the prosecution.
I have carefully perused and analysed the evidence on record.
The biological and serological evidence has been discussed, analysed and detailed hereinabove, in the circumstances, no further 58 of 131 59 FIR No. 302/11 PS - Vijay Vihar discussion is called for on the said plea.
In the circumstances, there is no substance in the plea so raised by the Learned Counsel for the accused.
18. Now let the testimony of PW1 Prosecutrix be perused and analysed.
PW1 prosecutrix, in her examinationinchief has deposed which is reproduced and reads as under : "On 02/08/2011, I was present at my house alone. In my family besides me there is my father, mother and two brothers. On that day one of my brother had gone to School and another had gone for attending his duty. My father was not well and was admitted in ICU at Max Hospital and my mother was also with him. I was taking rest in my house at about 2:00 p.m. accused Amit came to the house to whom I call as Bhiya (Bhaiya), I know him as he lives in my neighbourhood. When I told him that my parents are not present in the house as to why you have come to my house then he slapped me number of times and then I cried and he tied my mouth with the Chunni. He put off my clothes and tied my hands from the back side with chunni and then committed rape upon me. I also narrated about the factum of rape to the Neeru wife of accused, to whom I called as Didi but on which she gave me beatings, in the evening my mother had come to the house but as accused had threatened me so I did not disclose the incident to my mother on that day 59 of 131 60 FIR No. 302/11 PS - Vijay Vihar but on 03/08/2011, I narrated the whole incident to my mother on which my mother took me to the Police Station and from there I was taken by the Police for medical examination. My medical examination was conducted and my clothes which I was wearing at the time of incident were taken into possession by the Doctor. After medical examination I again came to the Police Station and from there I came to my house. On the next day i.e. 04/08/2011 we went again to the Police Station and we were called by the Police and my statement was recorded by the Police. My statement is Ex. PW1/A signed by me at point 'A'. On 06/08/2011, accused Amit was apprehended by the Police. The Police also got my statement recorded u/s 164 Cr.P.C. before the Court.
At this stage a sealed envelope sealed with the seal of DW is opened from which the proceedings and the statement u/s 164 Cr.P.C. are taken out. The statement u/s 164 Cr.P.C. is shown to the witness who identify the same of having been made to the Court. The statement U/S 164 Cr.P.C. is Ex.PW1/B signed at points 'A' & 'B'.
At the time of the incident I was studying in 8th Class in Rana Partap Sarvodaya Kanya Vidyalaya, Rithala, Sector 5, Rohini Delhi. I do not recollect my date of birth.
I can identify the accused if shown to me.
At this stage, the wooden partition has been removed. Accused Amit is present in the Court (correctly identified).
The wooden partition now has been restored to its original position.
At the time when accused Amit came in my house and committed rape upon me he was in drunken stage. I had seen accused Amit alone since I was raped four times so in this impression I had stated 60 of 131 61 FIR No. 302/11 PS - Vijay Vihar that I was raped by four persons. Accused Amit after committing rape upon has fled after bolting the door from outside and I had got bolt opened after calling Neeru Didi, wife of accused Amit.
From the aforesaid narration of PW1 - prosecutrix, it is clear that on 02/08/2011, she was present at her house alone. In her family besides her there is her father, mother and two brothers. On that day one of her brother had gone to School and another had gone for attending his duty. Her father was not well and was admitted in ICU at Max Hospital and her mother was also with him. She was taking rest in her house at about 2:00 p.m. accused Amit came to the house to whom she call as Bhaiya, she knows him as he lives in her neighbourhood. When she told him that her parents are not present in the house as to why he has come to her house then he slapped her number of times and then she cried and he tied her mouth with the Chunni. He put off her clothes and tied her hands from the back side with chunni and then committed rape upon her. She also narrated about the factum of rape to the Neeru wife of accused, to whom she called as Didi but on which she gave her beatings, in the evening her mother had come to the house but as accused had threatened her so she did not disclose the incident to her mother on 61 of 131 62 FIR No. 302/11 PS - Vijay Vihar that day but on 03/08/2011, she narrated the whole incident to her mother on which her mother took her to the Police Station and from there she was taken by the Police for medical examination. Her medical examination was conducted and her clothes which she was wearing at the time of incident were taken into possession by the Doctor. After medical examination she again came to the Police Station and from there she came to her house. On the next day i.e. 04/08/2011 they went again to the Police Station and they were called by the Police and her statement was recorded by the Police. Her statement is Ex. PW1/A signed by her at point 'A'. On 06/08/2011, accused Amit was apprehended by the Police. The Police also got her statement recorded u/s 164 Cr.P.C. before the Court which is Ex. PW1/B signed at points 'A' & 'B' (correctly identified). At the time of the incident, she was studying in 8th Class in Rana Partap Sarvodaya Kanya Vidyalaya, Rithala, Sector 5, Rohini, Delhi. She does not recollect her date of birth. She also correctly identified the accused in the Court. At the time when accused Amit came in her house and committed rape upon her, he was in drunken stage. She had seen accused Amit alone since she was raped four times so in this impression she had stated that she was raped by four persons.
62 of 131 63 FIR No. 302/11 PS - Vijay Vihar Accused Amit after committing rape upon her has fled after bolting the door from outside and she had got bolt opened after calling Neeru Didi, wife of accused Amit.
On a leading question put by the Learned Addl. PP for the State, PW1 - prosecutrix has deposed that : "Accused Amit after committing rape upon me had also called three of his other associates who had also committed rape upon me but I do not identify his three other associates. I had also shown the place of incident to the police."
PW1 - Prosecutrix during her crossexamination has negated the suggestions that in the morning of 02/08/2011 accused Amit had called names (galia di) to her parents or that that no rape was committed upon her (by) Amit accused or that she had stated against accused Amit at instance of her parents as they wanted to grab the loan of the parents of accused Amit or that on 02/08/2011 at the time of incident her brother was with her and he had not gone to the school or that she had not narrated the incident either to her parents or to Neeru Didi wife of accused Amit immediately after the incident or that on 63 of 131 64 FIR No. 302/11 PS - Vijay Vihar 02/08/2011 her parents had come to the house at about 1:00 p.m. or that she is deposing falsely.
Inspite of incisive crossexamination of PW1 - prosecutrix nothing material has been brought out on the record so as to impeach her creditworthiness. On perusal and analysis, the testimony of PW1 prosecutrix is found to be clear, natural, cogent, convincing, trustworthy and inspiring 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 PW1 - Prosecutrix is also found to be corroborated by the medical/gynaecological evidence as discussed here inbefore.
The testimony of PW1 - Prosecutrix is also found to be in consonance with her statement Ex. PW1/A made to the Police as well as her statement recorded u/s 164 Cr.P.C. Ex. PW1/B. 64 of 131 65 FIR No. 302/11 PS - Vijay Vihar The testimony of PW1 Prosecutrix is also found to be corroborated by the testimonies of PW4 - Smt. Raj, mother of the prosecutrix and PW5 - Kamal Dass, father of the prosecutrix to whom she disclosed the facts relating to the crime shortly after the incident being relevant u/s 6 and 8 of the Indian Evidence Act, 1872.
PW4 - Smt. Raj, mother of the prosecutrix in her examinationinchief has deposed that : "My husband was admitted in the MAX hospital, Pitampura about ten days before to this incident and I was also went to the hospital for looking after my husband. On 2nd day of month I do not remember when my husband was discharged from the Max hospital. I and my husband returned to the house at about 5:30 p.m. my daughter/prosecutrix (name withheld) had not informed anything to us about the incident. On the next day at about 7:00 p.m. my daughter/prosecutrix (name withheld) abruptly started weeping and stated that Amit came to her house and she was sleeping Amit given 2/3 slaps to her and after closing her eyes and tied her hands and legs he had put off her clothes and committed rape upon her. I alongwith my husband, brother and brother in law (jija) went to the Police Station and registered the case. My daughter was also got medically examined. Amit was also searched by the Police personnel but could not trace him. My statement was recorded by the police. My daughter was about 16 years of age at the time of incident. I do not remember her date of birth."
65 of 131 66 FIR No. 302/11 PS - Vijay Vihar From the aforesaid narration of PW4 - Smt. Raj, it is clear that her husband was admitted in the MAX hospital, Pitampura about ten days before to this incident and she also went to the Hospital for looking after her husband. On 2nd day of month she does not remember when her husband was discharged from the Max Hospital, she and her husband returned to the house at about 5:30 p.m. her daughter/prosecutrix (name withheld) had not informed anything to them about the incident. On the next day at about 7:00 p.m. her daughter/prosecutrix (name withheld) abruptly started weeping and stated that Amit came to her house and she was sleeping Amit given 2/3 slaps to her and after closing her eyes and tied her hands and legs he had put off her clothes and committed rape upon her. She alongwith her husband, brother and brotherinlaw (jija) went to the Police Station and registered the case. Her daughter was also got medically examined. Amit was also searched by the Police personnel but could not trace him. Her statement was recorded by the Police. Her daughter was about 16 years of age at the time of incident. She does not remember her date of birth.
66 of 131 67 FIR No. 302/11 PS - Vijay Vihar During her crossexamination PW4 - Smt. Raj has negated the suggestions that she had under gone tubectomy operation on 28/11/1996 (be read as 28/11/1994) or that her daughter/prosecutrix had disclosed her all the facts pertaining to the incident the moment she reached at the home and not in the evening as she deposed or that an amount of Rs. 90,000/ was taken as a loan in the marriage of her elder daughter from the accused Amit or that when the amount of loan of Rs. 90,000/ was demanded back by accused Amit from them, this false case was foisted upon him or that a false case has been registered against accused Amit or that she is deposing falsely.
PW5 - Kamal Dass, father of the prosecutrix in his examinationinchief has deposed that : "I was admitted in the MAX hospital about one week before the date of incident exact date I do not recollect. Vol. I have all the documents of my treatment and admission in the MAX hospital but have not brought them today. At that time my wife was also with me. I was discharged from the MAX hospital on the day when the incident had occured (occurred). Exact date I do not recollect. We i.e myself and my wife had come to the house on that day at about 5:30p.m. Vol. from the MAX hospital we went to Connaught Place, in a bank, from where 67 of 131 68 FIR No. 302/11 PS - Vijay Vihar withdrew the money and thereafter, I went to my office and there I paid amount of Rs. 500/ to my officer from whom I had taken earlier and thereafter, after taking some rest taking the metro from there and reached our house. When we reached at the home we found the wife of accused Amit alongwith my daughter (name withheld), the prosecutrix were found sitting at the gate of our house. When we reached at our house by TSR, it was accused Amit who came and accompanied and took me inside my house. On that day my daughter/prosecutrix did not disclose anything to us despite our asking as she was not keeping fit. She was taken to the hospital. Again said from our house we firstly went to the police station and from there police took the prosecutrix to the hospital for her medical examination and by that time it was 1:00 or 1:30 a.m. in the night. Thereafter, we returned at home. On the next day, my daughter prosecutrix has disclosed regarding the incident that she was alone at home and Amit had come inside the house and slapped her and tied her hands on the back and committed rape upon her on which we had gone to the police station. Statement of prosecutrix was recorded by the police at the police station and thereafter we returned to my house. Thereafter, accused Amit was arrested by the police after 23 days. Accused Amit is present in the Court correctly identified."
From the aforesaid narration of PW5 - Kamal Dass, it is clear that he was admitted in the MAX Hospital about one week before the date of incident exact date he does not recollect. Vol. He has all the documents of his treatment and admission in the MAX Hospital but have not brought them. At that time his wife was also with him. He was 68 of 131 69 FIR No. 302/11 PS - Vijay Vihar discharged from the MAX Hospital on the day when the incident had occurred. Exact date he does not recollect. They i.e himself and his wife had come to the house on that day at about 5:30 p.m. Vol. from the MAX Hospital they went to Connaught Place, in a bank, from where withdrew the money and thereafter, they went to his office and there he paid amount of Rs. 500/ to his officer from whom he had taken earlier and thereafter, after taking some rest taking the metro from there and reached their house. When they reached at the home they found the wife of accused Amit alongwith her daughter (name withheld), the prosecutrix were found sitting at the gate of their house. When they reached at their house by TSR, it was accused Amit who came and accompanied and took him inside his house. On that day his daughter/prosecutrix did not disclose anything to them despite their asking as she was not keeping fit. She was taken to the Hospital. Again said from their house they firstly went to the Police Station and from there Police took the prosecutrix to the Hospital for her medical examination and by that time it was 1:00 or 1:30 a.m. in the night. Thereafter, they returned at home. On the next day, his daughter prosecutrix has disclosed regarding the incident that she was alone at home and Amit had come inside the house and slapped 69 of 131 70 FIR No. 302/11 PS - Vijay Vihar her and tied her hands on the back and committed rape upon her on which they had gone to the Police Station. Statement of prosecutrix was recorded by the Police at the Police Station and thereafter they returned to his house. Thereafter, accused Amit was arrested by the Police after 23 days. He correctly identified accused Amit present in the Court.
During his crossexamination PW5 - Kamal Dass has negated the suggestions that he had not gone to Connaught Place or his office or had not taken out the money from the bank after his discharge from the MAX Hospital on the date of the incident as he deposed or that accused Amit has been falsely implicated in this case when he demanded his money back which was extended as loan to him (PW5) or that he is deposing falsely.
There is nothing in the crossexamination of PW4 - Smt. Raj, mother of the prosecutrix and PW5 - Kamal Dass, father of the prosecutrix so as to impeach their creditworthiness. They have withstood the rigors of crossexamination without being shaken. On careful perusal and analysis and by applying the discerning scrutiny 70 of 131 71 FIR No. 302/11 PS - Vijay Vihar standard [Ref. Raju @ Balachandran & Ors. Vs. State of Tamil Nadu 2012 XII AD (S.C.)1] their testimonies are found to be natural, clear, 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 Amit Kumar to falsely implicate him in the case.
19. While analysing the testimonies of PW1 Prosecutrix, PW4
- Smt. Raj and PW5 Kamal Dass as discussed hereinabove inspite of incisive crossexamination nothing has come out in the statements of PW1 Prosecutrix, PW4 - Smt. Raj and PW5 Kamal Dass which may throw even a slightest doubt on the prosecution version of the incident. Though the suggestions by the defence to PW1 Prosecutrix that in the morning of 02/08/2011 accused Amit had called names (galia di) to her parents or that that no rape was committed upon her (by) Amit accused or that she had stated against accused Amit at instance of her parents as they wanted to grab the loan of the parents of accused Amit or that on 02/08/2011 at the time of incident her brother was with her and he had not gone to the school or that she had not narrated the incident either to her parents or to Neeru Didi wife of accused Amit immediately 71 of 131 72 FIR No. 302/11 PS - Vijay Vihar after the incident or that on 02/08/2011 her parents had come to the house at about 1:00 p.m. or that she is deposing falsely and the suggestions put to PW4 - Smt. Raj, that she had under gone tubectomy operation on 28.11.1996 or that her daughter/prosecutrix had disclosed her all the facts pertaining to the incident the moment she reached at the home and not in the evening as she deposed or that an amount of Rs. 90,000/ was taken as a loan in the marriage of her elder daughter from the accused Amit or that when the amount of loan of Rs. 90,000/ was demanded back by accused Amit from them, this false case was foisted upon him or that a false case has been registered against accused Amit or that she is deposing falsely and the suggestions put to PW5 - Kamal Dass that he had not gone to Connaught Place or his office or had not taken out the money from the bank after his discharge from the MAX Hospital on the date of the incident as he deposed or that accused Amit has been falsely implicated in this case when he demanded his money back which was extended as loan to him (PW5) or that he is deposing falsely were put, which were negated by the said PW but the same have not at all being made probable much established by any cogent evidence. Further there is not an iota of evidence or even a suggestion 72 of 131 73 FIR No. 302/11 PS - Vijay Vihar that the accused has been falsely implicated because of animosity.
20. However, a futile attempt has been made by the accused to save his skin from the clutches of law by way of examination of his wife DW1 - Neeru as a defence witness.
DW1 - Neeru in her examinationinchief has deposed that : "My husband is innocent. I am a house wife. Prosecutrix (name withheld) and her mother are residing on the ground floor in the adjacent house (side wale makan mein). My husband was falsely implicated in this case. My husband was having pus in his private part and for this reason he had not established physical relation with me as the Doctor had advised to avoid the same. In the marriage of elder sister of prosecutrix (name withheld) my husband had paid a sum of Rs. 65,000/ and he also asked his friend to give 50,000/ in the marriage of elder sister of prosecutrix (name withheld). The entire family of prosecutrix (name withheld) remains engaged in wrong activity (Galat Kamo Mei) therefore, no neighbour like to talk with them. I had never opened the bolt (kundi) of house of the prosecutrix (name withheld). My husband is tottaly (totally) innocent. Prosecutrix (name withheld) had never told me anything like this (Aise Koi Baat) and my husband has not done any such wrong act (Aisa Galat Kaam). My husband does not drink Liquor (Mera Pati Daru Nahi Pita). I am having two daughters aged 9 years and 5 years. My husband had not done any wrong act."
73 of 131 74 FIR No. 302/11 PS - Vijay Vihar During her crossexamination DW1 - Neeru has made a futile attempt the save her husband Amit Kumar. The relevant part of her crossexamination is reproduced and reads as under : "On 1516/07/2011 my husband was having pus in his private part. The medical treatment for the same was taken by him from a Doctor in the neighbourhood. I do not having any record of such medical treatment. Vol. Whatever medicines were prescribed by the Doctor were purchased by us. I do not know the name of the Doctor nor the name of this Clinic. Vol. But it was situated near our house at Rohini. I have studied upto 8th Class. No physical relations were made by me with my husband w.e.f. 1516/07/2011 till 02/08/2011. Lastly, I made physical relation with my husband on 1112/07/2011. At the time of making such physical relations by me with my husband he was not suffering from such disease. I was having no disease in my private part. Q. When did you come to know that your husband has recovered from the alleged disease, he was suffering from?
Ans. Till the time my husband was arrested, he was suffering from the disease.
It is wrong to suggest that I had stopped my husband from establishing physical relations with me. It is wrong to suggest that my husband was not suffering from any disease of the nature (Aisi Koi Bimari Nahi Thi) that he was not able to establish physical relations with me.
The marriage of the elder sister of prosecutrix (name withheld) had taken place in the year, 2010, as I recollect. The amount of Rs. 65,000/ was given to the mother of prosecutrix (name withheld) 74 of 131 75 FIR No. 302/11 PS - Vijay Vihar by calling her (mother of prosecutrix (name withheld)) at our house about one week prior to the marriage of elder sister of prosecutrix (name withheld). Nothing was made in writing in respect of the alleged loan of Rs. 65,000/. The said amount of Rs. 65,000/ was taken from my motherinlaw namely Sona Devi. I do not know the Bank, the account number from which Sona Devi had taken out the alleged amount of Rs. 65,000/. Vol. Sona Devi must be knowing about it. My motherinlaw Sona Devi is having a Bank Account. We have not extended any loan in our neighbourhood. Nor my motherinlaw Sona Devi had extended any loan to anyone. Vol. On our asking, my motherinlaw Sona Devi had given the sum of Rs. 65,000/ to us. Mother of prosecutrix (name withheld) had been requesting us to give loan for one to one and a half month prior to the marriage of her daughter. Vol. She (mother of prosecutrix (name withheld)) was also ready to keep the documents of the ownership of house as a security. A few times mother of prosecutrix (name withheld) had come to our house for loan, the exact number of visits I do not recollect. Vol. When my husband used to come after duty, she (mother of prosecutrix (name withheld)) used to come to request for the loan. We had attended the marriage of the elder sister of prosecutrix (name withheld). After the marriage of elder sister of prosecutrix (name withheld), their visits to our house and our to their house visits kept going on (Aana Jana Laga Rehta Tha). No ownership documents of the mother of prosecutrix (name withheld) were kept as security. An amount to the minimum of Rs. 2 lacs (Kam Se Kam Do Lakh) was demanded by mother of prosecutrix (name withheld) from us. I am not aware as to from where the rest of the amount was arranged by mother of prosecutrix (name withheld). It is wrong to suggest that no any amount of Rs. 65,000/ was given to the mother of prosecutrix (name withheld). Q. When did you come to know that your husband, accused Amit has 75 of 131 76 FIR No. 302/11 PS - Vijay Vihar been arrested in a rape case?
Ans. I came to know about his arrest, at that time only when he was arrested by the Police (Usi Waqt Pata Chal Gaya Tha Jab Police Ne Giraftar Kiya Tha).
I do not recollect the exact date when my husband Amit was arrested by the Police but it was 05th August. He was arrested from his house. I was also present at the house when my husband Amit was arrested by the Police. Inquiries were made by the Police from me also. I had also come to know in the rape of whom my husband Amit has been arrested.
Q. When you come to know that your husband is involved in the committal of rape upon prosecutrix (name withheld), did you meet the parents of prosecutrix (name withheld)?
Ans. We had gone to meet the parents of prosecutrix (name withheld). Q. What did you ask from the parents of prosecutrix (name withheld) when you have gone to meet them?
Ans. We asked them as to why such an allegation (Iljaam) has been made against my husband. My husband cannot commit such an act. Q. When you asked from the parents of prosecutrix (name withheld), as deposed hereinabove, what was the reply given by the parents of prosecutrix (name withheld)?
Ans. Before the parents of prosecutrix (name withheld) could say anything, prosecutrix (name withheld) started doing the drama of unconsciousness (prosecutrix (name withheld) Behoshi Ka Drama Karne Lagi), on which prosecutrix (name withheld) was taken to the Hospital by her parents.
76 of 131 77 FIR No. 302/11 PS - Vijay Vihar Thereafter, I have not talked to the parents of prosecutrix (name withheld) in this regard.
Q. Did you collect the Mohall (Mohalla) people when you found that your husband is taken away in an alleged false rape case by the Police? Ans. We did not collect the Mohalla people.
We did not make any complaint in writing in the Police Station or to the Senior Police Officials against the alleged false implication in a rape case by the Police."
On careful perusal and analysis of the testimony of DW1 - Neeru, it is found that she has floated a theory that, "accused Amit her husband was suffering from pus in his private part w.e.f. 1516/07/2011 till 02/08/2011, till the time he was arrested and was not able to establish physical relations" but the said theory so propounded has not at all being made probable, much established by any cogent evidence. Nor any suggestion regarding the said theory was put/suggested either to PW1 - prosecutrix or to PW4 - Smt. Raj and PW5 - Sh. Kamal Dass during their incisive and lengthy cross examination. Not even a single word regarding the said theory, so propounded, was uttered by the accused during his statement recorded 77 of 131 78 FIR No. 302/11 PS - Vijay Vihar u/s 313 Cr.P.C. In the circumstances, the said theory, so floated, is merely an afterthought and falls flat on the ground.
It is also to be noticed that in his statement u/s 313 Cr.P.C., the accused has stated that he has been falsely implicated in order to grab his money and to extort more money. The family of prosecutrix was involved in immoral traffic activities. The said pleas so raised by the accused were not put/suggested either to PW1 - prosecutrix or to PW4 - Smt. Raj and PW5 - Sh. Kamal Dass during their incisive and lengthy crossexamination. In the circumstances, the said pleas so raised, are merely an afterthought.
The relevant part of the statement of accused Amit Kumar u/s 313 Cr.P.C. reads as under : "Q24. Do you want to say anything else?
Ans. I am innocent and has been falsely implicated in the present case in order to grab my money & to extort more money. The family of prosecutrix was involved in Immoral Traffic Activities."
Moreover, what has uttered by the accused for his false implication in his statement u/s 313 Cr.P.C. as reproduced hereinabove, also does not find corroboration from his wife DW1 - Neeru as the testimony of DW1 - Neeru is totally silent that her husband, accused 78 of 131 79 FIR No. 302/11 PS - Vijay Vihar Amit Kumar has been implicated in the case in order to grab his money and to extort more money.
DW1 - Neeru, wife of accused Amit Kumar in her cross examination, as was conducted by Learned Addl. PP for the State as reproduced hereinabove, has clearly admitted that they did not make any complaint in writing in the Police Station or to the Senior Police officials against the alleged false implication in a rape case by the Police. Why they did not make any complaint against the alleged false implication of accused Amit Kumar, the reasons for the same must be known to her (DW1 - Neeru). It clearly indicates that, Had accused Amit Kumar been falsely implicated, the said DW1 being the wife of accused Amit Kumar must have made the complaint to the Police/Senior Police officials against his false implication.
In view of above and in the circumstances, the testimony of DW1 - Neeru does not inspire confidence and she is a procured witness.
21. 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.
79 of 131 80 FIR No. 302/11 PS - Vijay Vihar 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. 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 80 of 131 81 FIR No. 302/11 PS - Vijay Vihar offence of rape without producing any injury to the genitals or leaving any seminal stains."
In Encyclopedia of Crime and Justice (Vol. 4) at page 1356, it is stated : ".....even slight penetration is sufficient and emission is unnecessary."
On analysing the testimony of PW1 - Prosecutrix in the light of medical/gynaecological examination vide MLC Ex. PW2/A of the prosecutrix, biological and serological evidence, together with the MLC of accused Amit Kumar Ex. PW3/A, as discussed hereinbefore, the act of sexual intercourse activity by complete penetration of penis or by partial penetration of the penis, within 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 Amit Kumar with PW1 - Prosecutrix without her consent.
22. Learned Counsel for the accused submitted that there is a 81 of 131 82 FIR No. 302/11 PS - Vijay Vihar delay of two days seven hours in lodging the FIR and in reporting the matter to the Police by the complainant despite the fact that as per the statement of complainant in the Court wherein she deposed that on the next day of incident i.e. 03/08/2011, she had disclosed the entire facts to her mother and despite this fact the matter has not been reported to the police for the period of more than one day. The delay in reporting of the matter to the Police has not been explained neither by the complainant PW1 nor by the parents of the prosecutrix.
I have carefully perused and analysed the evidence on record.
PW1 - prosecutrix in her examinationinchief has deposed that : "...I also narrated about the factum of rape to the Neeru wife of accused, to whom I called as Didi but on which she gave me beatings, in the evening my mother had come to the house but as accused had threatened me so I did not disclose the incident to my mother on that day but on 03/08/2011, I narrated the whole incident to my mother on which my mother took me to the Police Station and from there I was taken by the Police for medical examination. My medical examination was conducted and my clothes which I was wearing at the time of incident were taken into possession by the Doctor. After medical examination I 82 of 131 83 FIR No. 302/11 PS - Vijay Vihar again came to the Police Station and from there I came to my house. On the next day i.e. 04/08/2011 we went again to the Police Station and we were called by the Police and my statement was recorded by the Police. My statement is Ex. PW1/A signed by me at point 'A'."
(Underlined by me) There is nothing in the crossexamination of PW1 - prosecutrix so as to impeach her creditworthiness.
PW13 - SI G. R. Tanwar in his crossexamination has specifically deposed that : "I had inquired from the prosecutrix for the delay caused in the reporting of the case for which she had stated that she was threatened and for this reason, the matter could not be reported in time."
PW4 - Smt. Raj, mother of the prosecutrix in her examinationinchief has deposed that : "My husband was admitted in the MAX hospital, Pitampura about ten days before to this incident and I was also went to the hospital for looking after my husband. On 2nd day of month I do not remember when my husband was discharged from the Max hospital. I and my husband returned to the house at about 5:30 p.m. my daughter/prosecutrix (name withheld) had not informed anything to us about the incident. On the next day at about 7:00 p.m. my daughter/prosecutrix (name withheld) abruptly started weeping and 83 of 131 84 FIR No. 302/11 PS - Vijay Vihar stated that Amit came to her house and she was sleeping Amit given 2/3 slaps to her and after closing her eyes and tied her hands and legs he had put off her clothes and committed rape upon her. I alongwith my husband, brother and brother in law (jija) went to the Police Station and registered the case. My daughter was also got medically examined."
There is nothing in the crossexamination of PW4 Smt. Raj so as to impeach her creditworthiness.
The sight cannot be lost of the fact of the rigors through which the minor prosecutrix was undergoing on whom the sexual assault was committed by none else than a person, the accused Amit Kumar, to whom she called as Bhaiya and was also threatened by him not to disclose the incident. One is left wandering as to how it is expected that she would gather the courage in such adverse circumstances to lodge the report with the Police. Moreover, when at the first opportunity she (prosecutrix) narrated about the incident/factum of rape to Neeru wife of accused to whom she called as Didi but on which she (Neeru) gave beatings to her.
From the testimonies of PW1 Prosecutrix and PW4 Smt. 84 of 131 85 FIR No. 302/11 PS - Vijay Vihar Raj as reproduced hereinabove, it is clearly indicated that on 02/08/2011, on the date of alleged incident itself, PW1 - prosecutrix being under the threat of the accused could not disclose the incident to her mother and that when on 03/08/2011 at about 7:00 p.m. PW1 Prosecutrix abruptly started weeping, on being asked by her mother she gathered the courage and disclosed the incident to her and thereafter, the police was approached and the report was lodged on 04/08/2011 vide DD No. 35A, 9:30 p.m. Ex. PW13/A. The sight cannot be lost of the fact that the Indian women has tendency to conceal offence of sexual assault because it involves her prestige as well as prestige of her family. Only in few cases, the victim girl or the family members has courage to go before the Police Station and lodge a case.
In view of above and in the circumstances, the delay in reporting the matter to the Police on 04/08/2011 sufficiently and satisfactorily stands explained.
85 of 131 86 FIR No. 302/11 PS - Vijay Vihar Normally a woman would not falsely implicate for the offence of rape at the cost of her character. In Indian society, it is very unusual that a lady with a view to implicate a person would go to the extent of stating that she was raped. [Ref. Madan Lal Vs. State of MP (1997) 2 Crimes 210 (MP)].
Delay in lodging of FIR is a normal phenomenon especially in cases like rape or outraging the modesty of a women, the aggrieved or the injured person or her relations will naturally think twice before giving a complaint to the police (Ref. Mohd. Habib Vs. State (Delhi Administration) 1989 CRLJ 137 (Delhi).
The delay in a case of sexual assault, cannot be equated with the case involving other offences. There are several factors which weigh in the mind of the prosecutrix and her family members before coming to the police station to lodge a complaint. In a tradition bound society prevalent in India, more particularly, rural areas, it would be quite unsafe to throw out the prosecution case merely on the ground that there is some delay in lodging the FIR. (Ref. State of Himachal Pradesh V. Prem Singh AIR 2009 SC 1010).
86 of 131 87 FIR No. 302/11 PS - Vijay Vihar The Hon'ble Supreme Court in case Karnel Singh Vs. State of M.P (1995) 5 SCC 518, has held : "7.......The submission overlooks the fact that in India women are slow and hesitant to complain of such assaults and if the prosecutrix happens to be a married person she will not do anything without informing her husband. Merely because the complaint was lodged less then promptly does not raise the inference that the complaint was false. The reluctance to go to the police is because of society's attitude towards such women; it casts doubt and shame upon her rather than comfort and sympathise with her. Therefore, delay in lodging complaints in such cases does not necessarily indicate that her version is false (emphasis added)."
The Hon'ble Supreme Court in Para 21 in case Rajinder V. State of H.P. AIR 2009 SC 3022 has interalia held : "21. In the context of Indian Culture, a woman victim of sexual aggression would rather suffer silently than to falsely implicate somebody. Any statement of rape is an extremely humiliating experience for a woman and until she is a victim of sex crime, she would not blame anyone but the real culprit. While appreciating the evidence of the prosecutrix, the Courts must always keep in mind that no selfrespecting woman would put her honour at stake by falsely alleging commission of rape on her and, therefore, ordinarily a look for corroboration of her testimony is unnecessary and uncalled for......."
87 of 131 88 FIR No. 302/11 PS - Vijay Vihar The Hon'ble Supreme Court in Para 13 in case Om Prakash Vs. State of Uttar Pradesh AIR 2006 SC 2214 has interalia held : "13. It is settled law that the victim of sexual assault is not treated as accomplice and as such, her evidence does not require corroboration from any other evidence including the evidence of a doctor. In a given case even if the doctor who examined the victim does not find sign of rape, it is no ground to disbelieve the sole testimony of the prosecutrix. In normal course a victim of sexual assault does not like to disclose such offence even before her family members much less before public or before the police. The Indian women has tendency to conceal such offence because it involves her prestige as well as prestige of her family. Only in few cases, the victim girl or the family members has courage to go before the police station and lodge a case......"
The Hon'ble Supreme Court in Para 20 in case 'Satyapal Vs. State of Haryana AIR 2009 SC 2190' has interalia held : "20. This Court can take judicial notice of the fact that ordinarily the family of the victim would not intend to get a stigma attached to the victim. Delay in lodging the First Information Report in a case of this nature is a normal phenomenon......."
In the case of 'Wahid Khan Vs. State of Madhya Pradesh', (2010) 2 SCC 9, the Hon'ble Supreme Court held : 88 of 131 89 FIR No. 302/11 PS - Vijay Vihar "It is a matter of common law that in Indian society any girl or woman would not make such allegations against a person as such she is fully aware of the repercussions flowing therefrom. If she is found to be false, she would be looked by the society with contempt throughout her life. For an unmarried girl, it will be difficult to find a suitable groom. Therefore, unless an offence has really been committed, a girl or a woman would be extremely reluctant even to admit that any such incident had taken place which is likely to reflect on her chastity. She would also be conscious of the danger of being ostracized by the society. It would indeed be difficult for her to survive in Indian society which is, of course, not as forward looking as the western countries are."
In the circumstances, there is no substance in the plea so raised by the Learned Counsel for the accused.
23. Learned counsel for the accused submitted that there is delay of 26 days in recording the statement of prosecutrix u/s 164 Cr.P.C. The prosecutrix was not produced before the learned MM for recording statement u/s. 164 Cr.P.C. The said delay in recording the statement of prosecutrix u/s. 164 Cr.P.C. has not been explained by the investigation office, which is fatal to the prosecution.
I have carefully perused and analysed the evidence on 89 of 131 90 FIR No. 302/11 PS - Vijay Vihar record.
PW13 - SI G. R. Tanwar in his crossexamination has specifically deposed that : "The statement of the prosecutrix u/s 164 Cr.P.C. was got recorded after 26 days of the reporting of the matter as she was not keeping fit. No notice in writing was given to the prosecutrix for making the statement u/s 164 Cr.P.C. Vol. She was approached in person at her house. It is incorrect to suggest that the prosecutrix was tutored before making her statement u/s 164 Cr.P.C."
(Underlined by me) From above, the delay in recording the statement u/s 164 Cr.P.C. Ex. PW1/B of the prosecutrix on the ground that she was not keeping fit stands satisfactorily explained.
In the circumstances, there is no substance in the plea so raised by the Learned Counsel for the accused.
24. Learned Counsel for the accused submitted that MLC of the prosecutrix is contrary to the allegation levelled in FIR. As per the MLC of prosecutrix, Doctor Ms. Deepika Jagga (PW2) observed that 'her vital 90 of 131 91 FIR No. 302/11 PS - Vijay Vihar were stable. There was 3 cm. nail scratch mark seen on the left arm (healed). No other sign of injury. On per abdomen examinationsoft. On per vaginal examinationtwo finger easily introduced (painfully). Hymen torn. No bleeding per vaginal. Uterus normal size, firm, mobile, regular, forenices free. No rectal injury." On the other hand, as per the statement of prosecutrix PW1, she was subjected to rape by four persons against her consent and stated her age sixteen years and she also deposed that it was the first sexual act which has been taken place in her lifetime. It is unbelievable story as per the medical jurisprudence that her hymen was found torn (however it was not disclosed that it was fresh or old but in the absence of fresh, it can be presumed that it was old torn). It is also hard to believe that she is admitting two fingers easily. There was no fresh injury found on her libia (labia) minora and libia (labia) majora. The MLC of prosecutrix indicates that either she was never been subjected to any sexual act or she was habitual of sexual act which is totally contrary to the version of prosecution and prosecutrix.
I have carefully perused and analysed the evidence on record.
91 of 131 92 FIR No. 302/11 PS - Vijay Vihar The testimony of PW2 - Dr. Deepika Jagga, SR, Gynae has been discussed and analysed hereinbefore who gynaecologically examined the prosecutrix on 04/08/2011 at about 10:00 p.m. vide MLC Ex. PW2/A signed by her at point 'A'. There is nothing in the cross examination of PW2 - Dr. Deepika Jagga, SR, Gynae so as to impeach her creditworthiness.
As regards nonfinding of any signs of injury on the body part of the prosecutrix is concerned, the absence of signs of any injury does not falsify the case of the prosecution which is otherwise proved on record by clear, cogent and convincing evidence.
Emission of semen or leaving of seminal stains or producing of any injury to the genitals is not necessary to constitute the offence of rape. Complete penetration or partial penetration of penis within the labia majora or the vulva or pudenda without emission of semen or even an attempt at penetration is quite possible to commit legally the offence of rape without producing any injury to the genitals or leaving any seminal stains. (Vide Modi in Medical jurisprudence and Toxicology (Twenty First Edition) at page 369 & Parikh's Textbook of Medical jurisprudence and Toxicology).
92 of 131 93 FIR No. 302/11 PS - Vijay Vihar Explanation appended to Section - 375 IPC clearly provides penetration is sufficient to constitute the sexual intercourse necessary to the offence of rape.
It is also to be noticed that in case, 'Ranjit Hazarika Vs. State of Assam', (1998) 8 SCC 635, the Hon'ble Supreme Court observed that nonrupture of hymen or absence of injury on victim's private parts does not belie the testimony of the prosecutrix.
In case 'O. M. Baby (Dead) by LRs Vs. State of Kerala', 2012 VI AD (S.C.) 521, the Hon'ble Supreme Court held that absence of injuries or mark of violence on the person of the prosecutrix may not be decisive, particularly, in a situation where the victim did not offer any resistance on account of threat or fear meted out to her.
As far as the plea of the Learned Counsel for the accused that prosecutrix also deposed that it was the first sexual act which has been taken place in her lifetime. It is unbelievable story as per the medical jurisprudence that her hymen was found torn (however it was 93 of 131 94 FIR No. 302/11 PS - Vijay Vihar not disclosed that it was fresh or old but in the absence of fresh, it can be presumed that it was old torn) is concerned, PW1 Prosecutrix during her crossexamination has specifically deposed that, 'No such incident had ever happened/taken place with me prior to as to what was committed by accused Amit upon me' and the gynaecological examination of PW1 Prosecutrix has been proved by PW2 - Dr. Deepika Jagga, SR, Gynae vide MLC Ex. PW2/A as reproduced, discussed and analysed herein before.
It is not made clear by the Learned Counsel for accused as to what benefit he intends to reap from the said plea so raised. Does he intend to convey that PW1 - prosecutrix is a girl/woman of "easy virtues" or a girl/woman of "loose moral character".
If it is so, it is not permissible as every woman has a right to protect her dignity and cannot be subjected to rape only for that reason.
In case Narender Kumar Vs. State (NCT of Delhi (2012) 7 SCC 171, the Hon'ble Supreme Court has held as under : 94 of 131 95 FIR No. 302/11 PS - Vijay Vihar "Even in cases where there is some material to show that the victim was habitual to sexual intercourse, no inference of the victim being a woman of "easy virtues" or a woman of "loose moral character"
can be drawn. Such a woman has a right to protect her dignity and cannot be subjected to rape only for that reason. She has a right to refuse to submit herself to sexual intercourse to anyone and everyone because she is not a vulnerable object or prey for being sexually assaulted by anyone and everyone. Merely because a woman is of easy virtue, her evidence cannot be discarded on that ground alone rather it is to be cautiously appreciated and the Court is required to adjudicate whether the accused committed rape on the victim on the occasion complained of. In view of the provisions of Sections 53 and 54 of the Evidence Act, 1872, unless the character of the prosecutrix itself is in issue, her character is not a relevant factor to be taken into consideration at all.
In 'State Vs. Ramdev Singh', AIR 2004 SC 1290, the Hon'ble Supreme Court observed that even if the victim in a given case has been promiscuous in her sexual behaviour earlier, she has a right to refuse to submit herself to sexual intercourse to anyone and everyone because she is not a vulnerable object or prey for being sexually assaulted by anyone or everyone.
In the circumstances, there is no substance in the plea so raised by the Learned Counsel for the accused.
95 of 131 96 FIR No. 302/11 PS - Vijay Vihar
25. Learned Counsel for the accused submitted that as per the MLC of accused Amit Kumar he had been suffering from "pus discharge from pernial soft and pain on swelling of prepuse" from last eleven to twelve days. In such a circumstances a man can not perform sexual act with any girl. Doctor has wrongly given an opinion that the accused Amit is capable to perform sexual intercourse however he has not stated that whether presently on the day of examination he can perform sexual act. This entire fact indicates the theory of false implication case.
I have carefully perused and analysed the evidence on record.
At the cost of repetition, PW3 Dr. Kuldeep Singh, CMO, BSA Hospital, Delhi has deposed that he has been deputed on behalf of Doctor Florence Almeida who has now left the Hospital. He has been been working with him in the year 2011 and he has seen him writing and signing in the usual course of his duties. The MLC No. 7491 is of Amit Kumar S/o Sh. Hari Chand who was brought by Constable N. Sridhar on 06/08/2011 at about 9:00 p.m. for medical examination as he was 96 of 131 97 FIR No. 302/11 PS - Vijay Vihar implicated in case under section 376(G)/506 IPC. As per MLC there was no fresh injuries and the patient sexual organs were well developed. After examination of his sexual organ, the concerned Doctor was of the opinion that no evidence to suggest that the patient cannot perform sexual intercourse. 10 Samples were collected by Dr. Florence Almeida sealed and handed over to the Police. The MLC of Amit Kumar is Ex. PW3/A signed by Doctor Florence Almeida at points 'A' and 'B'.
During his crossexamination, PW3 - Dr. Kuldeep Singh, CMO has deposed that : "I have not personally examined the patient and I am deposing as per the contents of the MLC Ex. PW3/A"
There is nothing in the crossexamination of PW3 - Dr. Kuldeep Singh, CMO so as to impeach his creditworthiness.
From the MLC Ex. PW3/A of the accused, it is clearly indicated that Dr. Florence Almeida has opined that there is no evidence to suggest that the patient cannot perform sexual intercourse. This opinion was given by Dr. Florence Almeida after the medical examination of the accused as detailed in the MLC Ex.
97 of 131 98 FIR No. 302/11 PS - Vijay Vihar PW3/A. The theory propounded by the Learned Counsel for the accused that, "a man cannot perform sexual act due to lesion on penis for last 1011 days" has not been made probable much established by any cogent evidence. Nor any evidence to the contrary has been produced or proved on the record on behalf of the accused.
At the cost of repetition, in the MLC Ex. PW3/A of the accused, Dr. Florence Almeida, after the complete medical examination of the accused inclusive of mentioning therein. "O/o lesion on penis for last 1112 days" has opined that there is no evidence to suggest that the examinee cannot perform sexual intercourse. Moreover, the said theory, so propounded, was not put/suggested either to PW1 - prosecutrix or to PW4 - Smt. Raj or PW5 - Sh. Kamal Dass during their incisive and lengthy cross examination. In the circumstances, the said theory so propounded is found to have no substance and is merely an afterthought and falls flat on the ground.
In the circumstances, there is no substance in the plea so 98 of 131 99 FIR No. 302/11 PS - Vijay Vihar raised by the Learned Counsel for the accused.
26. Learned Counsel for the accused submitted that as per the site plan prepared by the investigation officer Ex. as PW13/C at the instance of the prosecutrix. In the said site plan point 'A' has been sited as a place(bed) where the offence of rape has been committed. However from the photographs taken by the photographer showing that there is no bed any where in the house. However, the mattress were lying on the floor. IO of the case has stated that the place of occurrence/flat in question was a two bedroom flat. However, the said flat has not been sited in the site plan because it was a single room flat. The said material fact also indicates the false version of prosecution.
I have carefully perused and analysed the evidence on record.
PW19 - Constable Rajbir has proved the photographs of the spot Ex. PW19/A1 to Ex. PW19/A6.
On a conjoint reading of the testimony of PW13 - SI G. R. Tanwar, IO coupled with the photographs Ex. PW19/A1 to Ex. PW19/A6 99 of 131 100 FIR No. 302/11 PS - Vijay Vihar and the site plan Ex. PW13/C, the same are found to be in consonance. Moreover, if in the estimation of the Learned Counsel for the accused that at point 'A' in the site plan was the place (bed) where the offence of rape was allegedly committed but the photographs show that the mattress was lying on the floor, it should have been clarified from the IO, PW13 - SI G. R. Tanwar during the course of his crossexamination as he was the only competent witness who would have been fully capable of explaining correctly the factual situation. For such failure accused is to blame himself and none else.
As regards nonciting of the flat in question in the site plan Ex. PW13/C is concerned, the same should have also been clarified from the IO PW13 - SI G. R. Tanwar during the course of his cross examination as he was the only competent witness who would have been fully capable of explaining correctly the factual situation. For such failure, accused is to blame himself and none else.
It is settled law that if there is no crossexamination of a prosecution witness in respect of a statement of fact, it will only show the admission of that fact (Ref.: Wahid Ahmed and Ors. Vs. State (NCT 100 of 131 101 FIR No. 302/11 PS - Vijay Vihar of Delhi) 2011 VII AD (DELHI) 276).
In the circumstances, there is no substance in the plea so raised by the Learned Counsel for the accused.
27. Learned Counsel for the accused submitted that the Police has not arrested the remaining three other accused persons despite the fact that the prosecutrix had stated in FIR and to the doctor who prepared her MLC about other three boys alongwith the accused that they all were involved in the offence and mentioned in FIR. The Prosecutrix had also deposed in her crossexamination that "after about two minute of accused Amit leaving, he had came back with other three boys". After the arrest of accused Amit the disclosure statement of Amit was recorded by the IO on 06/08/11 as Ex.PW12/C in which he had disclosed that he can get arrested those three boys. Thereafter, the IO had produced the accused Amit before the Learned MM and applied for two days police remand in order to arrest the other three boys and to know their names and addresses. One day police remand was granted and thereafter no further disclosure statement was recorded nor any other persons were 101 of 131 102 FIR No. 302/11 PS - Vijay Vihar arrested. The entire facts shows that the prosecutrix is deposing falsely.
I have carefully perused and analysed the evidence on record.
PW1 - prosecutrix in her examinationinchief has specifically deposed that : "At the time when accused Amit came in my house and committed rape upon me he was in drunken stage. I had seen accused Amit alone since I was raped four times so in this impression I had stated that I was raped by four persons. Accused Amit after committing rape upon has fled after bolting the door from outside and I had got bolt opened after calling Neeru Didi, wife of accused Amit."
On a leading question put by the Learned Addl. PP for the State, PW1 - prosecutrix has deposed that : "Accused Amit after committing rape upon me had also called three of his other associates who had also committed rape upon me but I do not identify his three other associates. I had also shown the place of incident to the Police."
On the perusal of the MLC of the prosecutrix Ex. PW2/A, the alleged history told by the prosecutrix reads as under : 102 of 131 103 FIR No. 302/11 PS - Vijay Vihar "Victim named (withheld) D/o Kamal Dass, brought by SI G. R. Tanwar, accompanied by her mother Raj, H/o alleged sexual assault by a person name Amit H/o Neeru, Age 30 years, on 02/08/2011 at 2:00 p.m. Victim (name withheld) was alone at her home when Amit came and tied her hands, mouth and eyes. He beat her up. He was drunk. He removed her clothes. He then had intercourse with her. Amit then went out 23 other boys. Then according to history - those boys had intercourse with her. As per victim - total four times intercourse was done. Victim then took bath & urinated. She washed her clothes. Next day on 03/08/2011 - she also took bath - (this is as per history given by patient)."
On careful perusal and analysis of the testimony of PW1 - prosecutrix, the alleged history given by her in the MLC Ex. PW2/A and her statement u/s 164 Cr.P.C. Ex. PW1/B, it transpires that no doubt, she oscillated as to the number of persons committing rape upon her but she was clear and categorical in her examinationinchief that she had seen accused Amit alone since she was raped four times, so in this impression, she had stated that she was raped by four persons.
In the circumstances, the said oscillation does not reflect upon the substantive evidence and the probative value of the statement of PW1 - prosecutrix made on material and relevant aspects. Nor does it vitiate or negate the case of the prosecution which is otherwise proved on 103 of 131 104 FIR No. 302/11 PS - Vijay Vihar record by clear, cogent and convincing evidence.
The sight cannot be lost of the fact of the rigors through which the minor prosecutrix was undergoing on whom the sexual assault was committed by none else than a person, the accused Amit Kumar, to whom she called as Bhaiya and was also threatened by him not to disclose the incident. She has described the scenario implicating the accused to be author of the crime of the committal of sexual assault upon her. The core fact about the committal of crime by the accused remained intact.
As regards the plea as to why no further disclosure statement was recorded by the IO of accused Amit after his one day Police Custody Remand and why no any other person was arrested, is concerned, it was for the accused to obtain information regarding the same from PW13 - SI G. R. Tanwar, IO during his crossexamination. He was only the competent witness who would have been fully capable of explaining correctly the factual situation. For such failure accused is to blame himself and none else.
104 of 131 105 FIR No. 302/11 PS - Vijay Vihar At the cost of repetition, it is settled law that if there is no crossexamination of a prosecution witness in respect of a statement of fact, it will only show the admission of that fact (Ref.: Wahid Ahmed and Ors. Vs. State (NCT of Delhi) 2011 VII AD (DELHI) 276).
In the circumstances, there is no substance in the plea so raised by the Learned Counsel for the accused.
28. Learned Counsel for the accused submitted that as per the disclosure of accused Amit that on dated 02/08/2011 accused had taken the prosecutrix to the house of Sanju situated at C 18, Sector 24, Rohini, where the Sanju and his father were present and he returned back and on the way he had taken the prosecutrix in his lap and kissed her. Thereafter, she had left the house of Sanju and he followed her. Thereafter, prosecutrix came to her house and he also entered into the house and committed rape upon her after closing (tying) her mouth and eyes by bandage (Chunni). He also disclosed that he called two other boys and those boys also committed rape with prosecutrix. On the other hand, it is unanswerable that despite the said disclosure why the IO of 105 of 131 106 FIR No. 302/11 PS - Vijay Vihar the case had not interrogated Sanju and his father residents of C 18, Sector 24, Rohini, New Delhi and why the IO had not interrogated the prosecutrix about the fact of disclosure.
I have carefully perused and analysed the evidence on record.
As far as the plea of the Learned Counsel for the accused as to why the IO of the case has not interrogated Sanju and his father, residents of C - 18, Sector - 24, Rohini, New Delhi and why the IO had not interrogated the prosecutrix about the fact of disclosure statement of accused Amit, is concerned, it was for the accused to obtain information regarding the same from PW13 - SI G. R. Tanwar, IO during his cross examination. He was only the competent witness who would have been fully capable of explaining correctly the factual situation. For such failure accused is to blame himself and none else.
At the cost of repetition, it is settled law that if there is no crossexamination of a prosecution witness in respect of a statement of fact, it will only show the admission of that fact (Ref.: Wahid Ahmed and Ors. Vs. State (NCT of Delhi) 2011 VII AD (DELHI) 276).
106 of 131 107 FIR No. 302/11 PS - Vijay Vihar In the circumstances, there is no substance in the plea so raised by the Learned Counsel for the accused.
29. Learned Counsel for the accused submitted that the prosecutrix has deposed in her statement u/s 164 Cr.P.C. that she had narrated the story to the wife of the accused immediately after the incident and the wife of Amit had opened the kundi (bolt). Despite this fact in order to verify the truth why the IO had not interrogated the wife of accused Amit. The said act is fatal to the prosecution and was examined as DW1.
I have carefully perused and analysed the evidence on record.
PW13 - SI G. R. Tanwar, IO during his crossexamination has specifically deposed that he had not recorded the statement of the wife of the accused as she was not willing to make the statement.
The relevant part of the crossexamination of PW13 - SI G. 107 of 131 108 FIR No. 302/11 PS - Vijay Vihar R. Tanwar, IO recorded on 14/03/2013 reads as under : "Q. In the statement u/s 164 Cr.P.C., the prosecutrix had disclosed about the role played by the wife of the accused in untying the note of the ropes tied. Did you record the statement of the wife of the accused?
Ans. I had not recorded the statement of the wife of the accused as she was not willing to make the statement."
From the aforesaid narration of PW13 - SI G. R. Tanwar, IO, it is clearly indicated that he had not recorded the statement of the wife of the accused as she was not willing to make the statement.
In the circumstances, when Neeru, the wife of the accused was unwilling to make the statement, one is left wandering as to how the IO can be expected to record her statement.
In the circumstances, there is no substance in the plea so raised by the Learned Counsel for the accused.
30. Learned Counsel for the accused submitted that the conduct of the person who had committed such a heinous crime cannot be in a manner that after committing the alleged crime he remained at home and 108 of 131 109 FIR No. 302/11 PS - Vijay Vihar helped the father of the prosecutrix on the same day of incident. This fact is very much proved from the testimony of PW5 (father of the prosecutrix). The said conduct of the accused proved that he had not committed any offence with the daughter of PW5.
I have carefully perused and analysed the evidence on record.
It is not made clear by the Learned Counsel for the accused as to what benefit he intends to reap by raising the said plea.
It is well settled that absconding by itself does not prove the guilt of a person. (Ref. : 'S. K. Yusuf Vs. State of West Bengal' (2011) 11 SCC 754).
PW12 - HC N. Sridhar during his crossexamination has negated the suggestion that the accused did not make an attempt to flee on seeing the Police.
The relevant part of the crossexamination of PW12 - HC N. Sridhar reads as under : "It is wrong to suggest that accused did not make an attempt to flee on seeing us. Vol. The accused made an attempt to slip away."
109 of 131 110 FIR No. 302/11 PS - Vijay Vihar From above, it is clearly indicated that accused made an attempt to slip away.
As regards the theory propounded by the accused that, "he remained at home and helped the father of the prosecutrix on the same day of incident", is concerned, the facts relating to it must be within the especial knowledge of the accused and the burden for proving the same was upon him. Moreover, the statement of accused recorded u/s 313 Cr.P.C. is totally silent on the aspect regarding which the plea has been raised.
Section 106 of the Indian Evidence Act, 1872 provides for burden of proving fact especially within knowledge.
It reads as under : "106. Burden of proving fact especially within knowledge. When any fact is especially within the knowledge of any person, the burden of proving that fact is upon him."
In the circumstances, there is no substance in the plea so 110 of 131 111 FIR No. 302/11 PS - Vijay Vihar raised by the Learned Counsel for the accused.
31. Learned Counsel for the accused submitted that the PW5 (Father of the prosecutrix) as well as PW4 mother of the prosecutrix admitted the suggestions that they had taken loan of Rs. 65,000/ from the accused at the time of marriage of her elder daughter. But had denied the suggestion that when the accused demanded back his amount he had been implicated in the present case. Hence, the false implication of the accused in the present case is duly proved.
I have carefully perused and analysed the evidence on record.
PW4 - Smt. Raj, mother of the prosecutrix during her cross examination has specifically deposed that : "During the marriage of my elder daughter an amount of Rs. 65,000/ was received by us after mortgaging our property papers/documents with the mother of the accused Amit. Vol. Rs. 50,000/ was received in one installments and 15,000/ was received at the time of arrival of Barat."
(Underlined by me) 111 of 131 112 FIR No. 302/11 PS - Vijay Vihar PW5 - Kamal Dass, father of the prosecutrix during his crossexamination has specifically deposed that : "We had taken Rs. 65,000/ in the marriage of my daughter Bharati from accused Amit who had brought from his family. Vol. The said money was given to us on interest and after mortgaging the land papers/documents."
(Underlined by me) From the aforesaid narration of PW4 - Smt. Raj and PW5 - Kamal Dass, it is clearly indicated that they have not denied the factum of taking a loan of Rs. 65,000/ in the marriage of their daughter Bharati from accused Amit, but they have specifically and categorically deposed that the said loan/money was given to them on interest and after mortgaging the land papers/documents.
During the entire incisive and lengthy crossexamination of PW4 - Smt. Raj and PW5 - Kamal Dass it is nowhere been disputed by the accused that the loan of Rs. 65,000/ was not given on interest and after mortgaging the land papers/documents of PW4 - Smt. Raj and PW5 - Kamal Dass.
112 of 131 113 FIR No. 302/11 PS - Vijay Vihar In the circumstances, it does not lie in mouth of accused to utter that giving of loan of Rs. 65,000/ to the parents of the prosecutrix, PW4 - Smt. Raj and PW5 - Kamal Dass at the time of marriage of their elder daughter was an act of generosity of the accused or that the said loan was not given subject to interest and mortgaging of their (PW4 & PW5) land papers and documents.
During the entire lengthy and incisive crossexamination of PW4 - Smt. Raj and PW5 - Kamal Dass no suggestion was put to them as to when and on which date the loan was demanded back by the accused and as to when and on which date they refused to pay it back.
Even DW1 - Neeru in her entire examinationinchief has not uttered a single word as to when and on which date the loan was demanded back from the parents (PW4 - Smt. Raj and PW5 - Kamal Dass) of the prosecutrix.
In the circumstances, the theory propounded by the accused that, "when the accused demanded back his amount he had 113 of 131 114 FIR No. 302/11 PS - Vijay Vihar been implicated in the present case" does not hold water and is merely an afterthought and falls flat on the ground.
In the circumstances, there is no substance in the plea so raised by the Learned Counsel for the accused.
32. Learned Counsel for the accused submitted that in the present case the investigation carried out by the IO was totally unfair and he had completely failed to investigate the case in a fair manner. This fact is proved from the fact that he had not filed any crime team report and photographs of the scene of crime, along with the charge sheet neither cited crime team in charge, photographer, Learned MM and Principal of the school in the list of witnesses. However, the crime team in charge had stated that he had handed over the crime team report to the IO immediately after the inspection of the spot. Photographer also stated that he had handed over the photographs of the scene of crime to the IO. IO had not recorded the statement of the neighbours whose house are situated very close to place of occurrence; IO did not make any effort to join the investigation by the public witnesses or neighbours; IO had not 114 of 131 115 FIR No. 302/11 PS - Vijay Vihar seized any bed sheet which was blood stained; IO had not seized any chunni from which mouth, eyes, hands of prosecutrix was entangled by the accused and as per the FIR Ex. PW6/A, rukka was sent from the spot and as per his (IO) deposition in crossexamination that rukka was sent from hospital but as per rukka Ex. PW13/B her (prosecutrix) statement was recorded in the Police Station.
I have carefully perused and analysed the evidence on record.
Undisputably, the names of the Crime Team Incharge, Photographer, Learned MM and Principal of the School were not cited in the list of prosecution witnesses by the IO SI G. R. Tanwar.
It is not in dispute that the copy of statement recorded u/s 164 Cr.P.C. by the Learned MM was supplied to the accused during the committal proceedings.
It is also not in dispute that vide a detailed order dated 14/03/2013, the application dated 14/03/2013 moved by IO SI G. R. Tanwar for addition of the names of the said witnesses, the Crime Team Incharge, Photographer, Learned MM and Principal of the School and 115 of 131 116 FIR No. 302/11 PS - Vijay Vihar for their summoning was allowed after hearing both the sides at length and the Learned Counsel for the accused had stated "No objection".
Nor it is in dispute that Crime Team Report and Photographs which were placed on the record, the copies thereof were supplied to the accused.
It is also not in dispute that in terms of order dated 14/03/2013, PW17 - SI Prem Singh, Incharge, Mobile Crime Team, PW19 - Constable Rajbir, Photographer, PW15 - Sh. Deepak Wason, Learned MM and PW16 - Mrs. Chanchal, TGT, RPSKV, Rithala, Delhi were summoned and examined in the case.
No doubt, IO SI G. R. Tanwar must have been diligent for the citing of the said witnesses in the list of prosecution witnesses and for placing the Crime Team Report and Photographs on the record, but the said lapse does not reflect upon the substantive evidence and the probative value of the statement of PW1 - prosecutrix made on material and relevant aspects. Nor does it vitiate or negate the case of the prosecution which is otherwise proved on record by clear, cogent and convincing evidence. The version of PW1 - prosecutrix on the core spectrum of the crime has remained intact.
116 of 131 117 FIR No. 302/11 PS - Vijay Vihar As regards the plea that, IO had not recorded the statement of the neighbours whose house are situated very close to place of occurrence and IO did not make any effort to join the investigation by the public witnesses or neighbours is concerned, the prosecution can be expected to examine only those who have witnessed the events and not those who have not seen it though the neighbourhood may be replete with other residents also.
In case 'State of Rajasthan Vs. Teja Ram & Ors.', AIR 1999 SC 1776, the Hon'ble Supreme Court has held that : "The overinsistence on witnesses having no relation with the victims often results in criminal justice going away. When any incident happens in a dwelling house, the most natural witnesses would be the inmates of that house. It is unpragmatic to ignore such natural witnesses and insist on outsiders who would not have even seen anything. If the Court has discerned from the evidence or even from the investigation records that some other independent person has witnessed any event connecting the incident in question, then there is a justification for making adverse comments against nonexamination of such a person as a prosecution witness. Otherwise, merely on surmises the Court should not castigate the prosecution for not examining other persons of the locality as prosecution witnesses. The prosecution can be expected to examine only those who have witnessed the events and not those who have not seen it though the neighbourhood may be replete with other 117 of 131 118 FIR No. 302/11 PS - Vijay Vihar residents also."
In case 'Narain Singh Vs. State' 2013 I AD (DELHI) 685, the Hon'ble Delhi High Court after referring to the cases, 'Pal Singh Vs. State of U.P.' (1979) 4 SCC 345; 'State of U.P. Vs. Anil Singh' AIR 1988 SC 1998 and 'Krishna Mochi Vs. State of Bihar' 2002 IV AD (S.C.) 45 held that, once it is held that the prosecution evidence is reliable and trustworthy and proves the offence, failure to examine other witnesses is not fatal. Nonexamination of further witnesses does not affect the credibility of the witnesses relied upon. It is quality of the evidence and not the number of witnesses that matters.
It is pertinent to reproduce the relevant part of examination inchief of PW13 - SI G. R. Tanwar, which reads as under : "On 06/08/2011, I alongwith HC Shri Dher remained in the investigation of the present case and and reached C & D Divider Road, Sector - 24, Rohini where a secret informer informed to IO that the accused who had committed rape on 02/08/2011 is present at his house i.e. C66, J. J. Colony, Sector - 24, Rohini, Delhi, if raided he can be apprehended. On this IO (I) asked 4/5 public persons to join the raiding party but none agreed and left the spot without telling their name and addresses."
118 of 131 119 FIR No. 302/11 PS - Vijay Vihar (Underlined by me) During his crossexamination recorded on 29/01/2013, PW13 - SI G. R. Tanwar has deposed that : "Inquiries were made from the occupants of Flat No. C61, C62, C64 & C65 but they did not cooperate stating that they are not interested. Vol. Other public persons were also asked for but declined. The said flat owners refused to disclose their name and addresses. The children from the said flats numbers were not called at PS for the purpose of investigation. They were asked/inquired at their houses only. Vol. It was told by them that Amit is on visiting terms to the house of prosecutrix and they are known to each other."
(Underlined by me) It is a matter of common experience that persons of public are reluctant to join the Police in the investigation.
Moreover nonjoining of the public witnesses does not falsify the case of the prosecution which is otherwise proved on record by clear, cogent and convincing evidence.
In case Nirmal Singh & Ors. Vs. State 2011 III AD (DELHI) 699, the Hon'ble Delhi High Court has held that : 119 of 131 120 FIR No. 302/11 PS - Vijay Vihar "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."
As regards the plea that IO had not seized any bed sheet which was blood stained, is concerned, it is pertinent to reproduce the relevant part of crossexamination of PW13 - SI G. R. Tanwar recorded on 14/03/2013, which reads as under : "No bed sheet was seized by me. Vol. As the same was already been washed."
As regards the plea that IO had not seized any chunni from which mouth, eyes, hands of prosecutrix was entangled by the accused, is concerned, it is pertinent to reproduce the relevant part of cross examination of PW13 - SI G. R. Tanwar recorded on 14/03/2013, which reads as under : "I had not seized any rope and chunni used in the commission of the said rape from which the prosecutrix was tied. Vol. The same was not found in the house."
120 of 131 121 FIR No. 302/11 PS - Vijay Vihar As far as the plea that as per the FIR Ex. PW6/A, rukka was sent from the spot and as per his (IO) deposition in crossexamination that rukka was sent from hospital but as per rukka Ex. PW13/B her (prosecutrix) statement was recorded in the Police Station, is concerned, there appears to be variation on the aspect as to where the rukka Ex. PW13/B was prepared and was sent from, for the registration of the case.
The said discrepancy may reflect upon the investigation but does not reflect upon the substantive evidence and the probative value of the statement of PW1 - prosecutrix made on material and relevant aspects. Nor does it vitiate or negate the case of the prosecution which is otherwise proved on record by clear, cogent and convincing evidence. The version of PW1 - prosecutrix on the core spectrum of the crime has remained intact.
In case A. Shankar Vs. State of Karnataka, 2011 VII AD (SC) 37, the Hon'ble Supreme Court has held : "....... Exaggerations per se do not render the evidence brittle. But it can be one of the factors to test the credibility of the prosecution version, when the entire evidence is put in a crucible for being tested on the touchstone of credibility. Therefore, mere marginal 121 of 131 122 FIR No. 302/11 PS - Vijay Vihar variations in the statements of a witness cannot be dubbed as improvements as the same may be elaborations of the statement made by the witness earlier.
Irrelevant details which do not in any way corrode the credibility of a witness cannot be labelled as omission or contradictions.....".
Even the honest and truthful witness may differ in some details unrelated to the main incident because power of observation, retention and reproduction differs with individuals. Discrepancies which do not go to the root of the matter and shake the basic version of the witnesses, therefore cannot be annexed with undue importance. (Ref. 'Mahmood Vs. State', 1991 RLR 287).
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 122 of 131 123 FIR No. 302/11 PS - Vijay Vihar 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 : "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.
123 of 131 124 FIR No. 302/11 PS - Vijay Vihar Such discrepancies may even in Law render credential to the depositions. The improvements or variations must essentially relate to the material particulars of the prosecution case. The alleged improvements and variations must be shown with respect to material particulars of the case and the occurrence. Every such improvement, not directly related to the occurrence is not a ground to doubt the testimony of a witness. The credibility of a definite circumstance of the prosecution case cannot be weakened with reference to such minor or insignificant improvements. Reference in this regard can be made to the judgments of this Court in Kathi Bharat Vajsur and Another Vs. State of Gujrat [(2010) 5 SCC 724], Narayan Chetanram Chaudhary and Another Vs. State of Maharashtra [(2000) 8 SCC 457], D. P. Chadha Vs. Triyugi Narain Mishra and Others [(2001) 2 SCC 205] and Sukhchain Singh Vs. State of Haryana and others [(2002) 5 SCC 100].
In the circumstances, there is no substance in the plea so raised by the Learned Counsel for the accused.
33. Learned Counsel for the accused submitted that in the examinationinchief when she was crossed by the Addl. PP the prosecutrix admitted that the accused Amit after committing rape upon her had also called three other associates and they had also committed rape. On the other hand in 164 Cr.P.C. it is totally contrary to this fact.
124 of 131 125 FIR No. 302/11 PS - Vijay Vihar It is also unbelievable that if nobody at home and her parents are in hospital, why the main gate of the house was not bolted from the inside? Why the brother of the prosecutrix had gone to the School? It is deposed by the prosecutrix that her mouth hands were tied by the different chunnis and her eyes were tied by the another chunni. It is submitted that there were three chunnis and three chunnis were not recovered neither it was clarified that what was their colour and how the accused easily got the three chunnis at the same time and how he succeeded to tie three chunnis forcibly at the three different parts of the body. Prosecutrix deposed that no such incident had ever happened/taken place with her. It is contrary to the MLC. Prosecutrix deposed that due to the said act blood oozed out and the bed sheet was blood stained. On the contrary as per MLC there were no abrasions or injury on a private parts. It is admitted by the prosecutrix that there is a land line telephone and a mobile but she did not know the number of the phones. Hence the testimony is unreliable. Prosecutrix further deposed that she had stated the whole incident to Neeru the wife of accused. The said act is totally unbelievable. She deposed that she had got the bold opened from the wife of accused. This fact is also unbelievable that when she was 125 of 131 126 FIR No. 302/11 PS - Vijay Vihar without clothes her hands were tied and her eyes and mouth were closed from the chunnis how she could make the door opened by making call for help. Hence the testimony of this witness is unreliable. It is also unbelievable that a person after committing rape calls three unknown boys and involved them into a same offence with the prosecutrix. Prosecutrix deposed that after committing first rape by the accused he went away from the house and came back after some minutes with three other persons then why she did not make any effort to get free from the clutches of the accused despite the fact that the neigbours house is very close to the scene of crime. Prosecutrix deposed in examination in chief that she had seen accused Amit alone since she was raped four times so she was in impression that she was raped by four persons. She had got bolt opened after calling Neeru Didi (wife of accused). The said story is unbelievable that when two neighbours are situated at the distance of 56 ft. from the house of the prosecutrix then why she called to Neeru Didi whose house is situated upon the first floor. Hence, the testimony of this witness is unreliable. Prosecutrix deposed that on 03/08/2011 accused Amit abused her and uttered that (KOI RANDI UPAR NAHI CHARNI CHAHIYE). Hence the testimony of this witness is unreliable because no 126 of 131 127 FIR No. 302/11 PS - Vijay Vihar person would not dare to abuse that girl with whom one day prior he has committed the rape along with three boys. It is admitted by the prosecutrix that the marriage of the elder sister was on 16/02/2010 and it was admitted that PW4 & PW5 that a loan was taken from the accused and the friend of the accused for the marriage. From above, it is very much clear and proved that the testimony of the prosecutrix (PW1) is totally untrustworthy, unreliable and deserved to be discarded.
I have carefully perused and analysed the evidence on record.
With due respect, the pleas so raised are repetitive and have already been dealt with at one place or the other in the judgment.
At the cost of repetition, the testimony of PW1 - prosecutrix has been reproduced, discussed and analysed hereinbefore and has been found to clear, cogent, convincing, trustworthy and inspiring confidence. There is nothing in her statement to suggest that she had any animus against the accused to falsely implicate him in the case. The version of this witness on the core spectrum of crime has remained intact.
127 of 131 128 FIR No. 302/11 PS - Vijay Vihar On analysing the entire testimony of PW1 - prosecutrix it transpires that she has described the scenario implicating the accused to be the author of the crime, of the committal of sexual assault four times upon her. The accused has failed to elicit any material or relevant discrepancies or inconsistencies despite her searching crossexamination.
As regards the theories floated by the Learned Counsel for the accused, "If nobody at home and her parents are in hospital, why the main gate of the house was not bolted from the inside? Why the brother of the prosecutrix had gone to the School", "How the accused easily got the three chunnis at the same time and how he succeeded to tie three chunnis forcibly at the three different parts of the body", "When she was without clothes her hands were tied and her eyes and mouth were closed from the chunnis how she could make the door opened by making call for help" and "When two neighbours are situated at the distance of 56 ft. from the house of the prosecutrix then why she called to Neeru Didi whose house is 128 of 131 129 FIR No. 302/11 PS - Vijay Vihar situated upon the first floor", are concerned, it is evident from the record that during the crossexamination of PW1 - prosecutrix, the accused did not voice his concern regarding the said theories so propounded. She was the only competent witness who would have been fully capable of explaining correctly the factual situation. For such failure accused is to blame himself and none else.
At the cost of repetition, it is settled law that if there is no crossexamination of a prosecution witness in respect of a statement of fact, it will only show the admission of that fact (Ref.: Wahid Ahmed and Ors. Vs. State (NCT of Delhi) 2011 VII AD (DELHI) 276).
In the circumstances, there is no substance in the plea so raised by the Learned Counsel for the accused.
34. Learned Counsel for the accused referred to the cases and are reported as "Rajjoo & Ors. Vs. State of M.P.", 2009 AIR (SC) 858, "Mumtaj Vs. State of Delhi", CR Appeal No. 214/2011, decided on 22/05/2013 (DHC) and "Ashok Narang Vs. State", 2012 [1] JCC 482.
129 of 131 130 FIR No. 302/11 PS - Vijay Vihar I have carefully gone through the same. With due respect there is no dispute as to what has been held therein but the same are wholly distinguishable in view of the peculiar facts and nature of evidence adduced in the instant case. In case titled Sunil Kumar Vs. State 181 (2011) DLT 528(DB) it was held that "No case can strictly be a precedent in a criminal matter for the reason no two criminal trials would unfold the same story and the same evidence. Thus, a decision cited pertaining to the destination reached at a particular criminal voyage has to be carefully applied, on a principle of law, in a subsequent voyage".
35. In view of above and in the circumstances, prosecution has thus categorically proved beyond shadows of all reasonable doubts that on 02/08/2011, at about 2:00 p.m. at House No. C 63, J. J. Colony, Sector - 24, Rohini, Delhi accused Amit Kumar forcibly committed rape upon PW1 prosecutrix (name withheld) aged about 14 years (To be exact 14 years, 05 months and 27 days) against her wishes and without her consent after putting off her clothes and after tying of her hands from 130 of 131 131 FIR No. 302/11 PS - Vijay Vihar the back side with chunni and he also criminally intimidated her not to disclose the incident to anyone.
I accordingly hold accused Amit Kumar guilty for the offences punishable u/s 376/506 IPC and convict him thereunder.
36. In view of above discussion, I am of the considered opinion that as far as the involvement of the accused Amit Kumar in the commission of the offences u/s 376/506 IPC is concerned, the same is sufficiently established by the cogent and reliable evidence and in the ultimate analysis, the prosecution has been able to bring the guilt home to the accused Amit Kumar beyond shadows of all reasonable doubts and there is no room for hypothesis, consistent with that of innocence of accused. I, therefore, hold accused Amit Kumar guilty for the offences punishable u/s 376/506 IPC and convict him thereunder. Announced in the open Court (MAHESH CHANDER GUPTA) on 20th Day of May, 2014 Additional Sessions Judge Special Fast Track Court (N/W District), Rohini, Delhi 131 of 131