Delhi District Court
In Ram Murti vs . State Of Haryana; 1970 (3), Supreme ... on 16 April, 2012
IN THE COURT OF SH. VIRENDER KUMAR GOYAL
ADDL SESSIONS JUDGE: FAST TRACK COURT
ROHINI:DELHI
SC No. 06/01/11
Unique Identification No. 02404R1000892003
State
Versus
1) Naveen
Son of Jagpal
R/o Village Palla,
Delhi36
2) Vazid @ Jiddo
Son of Banay
R/o VillPalla Mazra,
Delhi.
3) Sanjay Singh
Son of Sh. Bhopal Singh Chohan
R/o Vill & PO Palla,
Delhi36.
FIR No. 260/02
PS -Alipur
U/s. 363/376/34 of IPC
Date of institution of the case: 13/03/2003
Arguments heard on: 04/04/2012
Date of reservation of order: 04/04/2012
Date of Decision: 16/04/2012
SC No. 06/01/11 1/33
JUDGMENT
This case was registered U/s. 363/34 of IPC on the complaint of one Kulwant Singh on 22/07/2002.
On 23/07/2002, prosecutrix was recovered. Her medical examination was got conducted. Her bone age determination was also got conducted. On 23/07/2002, slide swab and vaginal swab were taken into possession. Statement of prosecutrix was also got recorded U/s. 164 of Cr.P.C.
copy of DD No. 5A was collected. Date of birth certificate of prosecutrix was also collected. Rough site plan of the place, where the prosecutrix was raped, was prepared. PCR form was collected.
Accused Naveen, Wazid and Sanjay were arrested in this case. Their personal searches were conducted. They were sent for their medical examination. Blood, underwear and sample seal were collected regarding accused Sanjay, Wazid and Naveen, which were taken into possession.
The exhibits were sent to FSL and FSL report was obtained. TIP application of accused Naveen was dismissed by the learned Metropolitan Magistrate.
On completion of investigation, chargesheet was filed against all the three accused persons U/s. 363/376/34 of IPC, which was committed to the Court of Session on 26/07/2003 and was received on 05/08/2003.
Charge U/s. 363/366 of IPC and U/s. 376 (2) (g) of IPC with Section 506 PartII of IPC was framed against accused Wazid and charge U/s. 376(2) (g) with Section 506 PartII of IPC was framed against accused Naveen and Sanjay, to SC No. 06/01/11 2/33 which, they pleaded not guilty and claimed trial.
To prove its case, prosecution has examined PW1 to PW20 in all. On completion of evidence of the prosecution, statements of all the three accused persons were recorded. They have denied the case of the prosecution and have stated that they are innocent and have been falsely implicated in this case.
I have heard learned Addl. PP for State, learned defence counsels for the accused persons and have gone through the evidence adduced with material placed on record.
Age of the Prosecutrix:
In the complaint Ex. PW3/A, Kulwant Singh, brother of prosecutrix, has given the age of the prosecutrix as 15 years, whereas while recording statement U/s. 164 of Cr.P.C. Ex. PW8/A, prosecutrix disclosed her age to be as 14 years. According to Ex. PW19/E, date of birth of prosecutrix as per school record is 01/05/1987, which comes to 15 years and one month as on 21/07/2002 since when the prosecutrix was missing. According to the bone age Xray estimation Ex. PW2/A, it was opined that she was between the age of 17 to 18 years.
PW2 Dr. Shipra Rampal has examined the prosecutrix for bone age estimation and she gave the estimated age of the prosecutrix between 17 to 18 years. In the cross examination, she has stated that age could be 16½ years and 18½ years.
PW3 Kulwant Singh has deposed the age of the prosecutrix as 15 years. SC No. 06/01/11 3/33 In the cross examination, he has denied that his sister i.e. prosecutrix was more than 18 years at the time of incident. PW11, the prosecutrix, herself has stated that she had not told her age to the Metropolitan Magistrate, who had recorded her statement. At that time, she had completed 16 years and was not 14 years of age. PW11, the prosecutrix, has denied the suggestion that she was above 18 years at the time of incident, rather, she was 15 years of age at that time. PW16, Sh. Akash, Primary Teacher from Primary School Jhangola No2, Delhi, has proved the summoned record, according to which, the prosecutrix was admitted in the school on 29/07/92 and she left the school on 12/11/92. Her date of birth is 01/05/1987, as per school record, photocopy of which is Ex. PW16/A1 and Ex. PW16/A2.
Learned defence counsel has contended that this certificate given by the school authority cannot be relied upon as PW16 has admitted in the cross examination that there is no proof of age certificate of MCD or others in support of her admission in the school. Learned defence counsel has further contended that in such circumstances, it is not known on what basis, date of birth of prosecutrix was given in the school at the time of her admission as 01/05/1987, so, this date of birth cannot be accepted as true and correct in absence of date of birth certificate issued by MCD. Learned defence counsel has further contended that IO had not made any efforts to verify as to where the prosecutrix was born and where, her date of birth was got registered with the MCD.
Learned defence counsel has further contended that in such circumstances, as there is no documentary proof to substantiate the date of birth of prosecutrix as 01/05/87 and somewhere she has mentioned her age about 14 years, SC No. 06/01/11 4/33 somewhere 15 years and according to bone age xray estimation, she has been opined in between 17 to 18 years. Date of birth, as mentioned in the school record without any basis, cannot be accepted.
Learned defence counsel in support of his contentions has relied upon 2010 (4) JCC 2510 titled as Kulwant Singh V. State (Govt. of NCT of Delhi), wherein it has been held that if actual date of birth of prosecutrix was not known and was given as a rough idea, then the conclusion that the girl was definitely below 16 years of age, benefit of doubt should be given to the accused. It has been further held that if the girl was mature enough and had taken a decision to even away with a boy of almost her own age, then no case is made out to convict the boy.
Learned defence counsel has further relied upon AIR 2010 Supreme Court 392 titled as Sunil V. State of Haryana, wherein it has been held that close and careful determination of age of prosecutrix become imperative. Clinical examination shown that prosecutrix had developed secondary sexual characters and if the report of the radiologist and dental surgeon not produced, admission form not produced and school leaving certificate was obtained after few days of the incident, father giving age of the prosecutrix only approximately, then conviction of accused would be improper.
According to the admission form also, date of birth of prosecutrix has been shown as 01/05/1987, but it is not known as to what was the basis of entering the date of birth as 01/05/1987 of the prosecutrix. According to the deposition of PW1 Dr. Sunita Gupta, secondary sexual characters were well developed and age of the prosecutrix has been opined by PW2 Dr. Shipra Rampal on bone age SC No. 06/01/11 5/33 estimation in between 17 to 18 years, so, it is not proved that prosecutrix was less than 16 years of age at the time of incident.
The contentions of learned defence counsel are forceful and judgments relied upon by learned defence counsel are applicable to the facts and circumstances of the present case. Merely date of birth, as given in the school record without any basis, cannot be relied upon. In support, I also rely upon 1998 (2) JCC (Delhi) 122 titled as Dewan Singh v. The State, wherein it has been held that:
"The question of age of the prosecutrix is always extremely important in the cases under Section 376 IPC. According to the mother of the prosecutrix, Sushipa PW8, her age at the time of the incident was around 16 years at the time of incident. According to the Radiologist, she was above the age of 15 and less than 16 years. As per PW12 Smt. Pushpa Sharma, Acting Headmistress of M.C. Primary School, Lancer Road, Delhi stated that according to her date of birth recorded in the school is 14.08.1962. The prosecutrix Arunima herself gave her age as 15 years. In view of the inconsistent and conflicting statements, about the age of the prosecutrix the report of the Radiologist acquires greater importance and significance. According to the Radiologist, she was above 15 years and less than 16 years of age. In case the girl is above 16 years then the entire complexion of the case changes. In this case, neither the prosecutrix nor her mother had given the exact age. There is no entry of her birth in any government offices."
In Ram Murti vs. State of Haryana; 1970 (3), Supreme Court Cases 21 the court held that:
SC No. 06/01/11 6/33
" The question of age of the prosecutrix in cases under Sections 266 and 376, IPC is always of importance. It was particularly so in this case because according to the medical evidence the prosecutrix was found to have been used to sexual intercourse and the rupture of the hymen was old. The High Court having acquitted the appellant for an offence under Section 376 IPC, because the prosecutrix appeared to be a consenting party not only to the impugned acts of sexual intercourse in question but even on earlier occasions, it was, in our opinion, a fit case in which that court should have examined the question of her age more closely. On the evidence on the record we are far from satisfied that there is any trustworthy evidence on the record on which the conclusion that Satnam Kaur, prosecutrix, was under 18 years of age in March, 1965 can safely be founded."
In Raunki Saroop v. State: AIR 1970 Punjab and Haryana 450, it has been held that "The medical opinion based on xray report should be preferred to oral evidence. In this case, PW2 Dr. J.R. Dass, Radiologist stated that after examining Elbow joints, wrist joints and Knee Joints he had opined that Arunima was over 15 years but less than 16 years. The learned counsel for the petitioner submitted that the margin of error in the Radiologist's examination is two years on either side. He also submitted that according to settled principle of criminal jurisprudence, the accused must get benefit of doubt in any circumstances. Therefore, when the benefit as prayed is extended to the prosecutrix then she becomes 17 to 18 years of age at the time of the incident."
Accordingly, the age, as opined by PW2 Dr. Shipra Rampal, the bone SC No. 06/01/11 7/33 age estimation can be accepted and is relied upon. Accordingly, it is held that age of the prosecutrix on the day of the incident was in between 17 to 18 years. Finding qua offences U/s. 363/366 & U/s. 376(2) (g) of IPC:
PW3 Kulwant Singh, in this respect, has deposed that his sister, the prosecutrix, who was aged about 15 years, left their house to take money on 22/07/2002. She did not return. Thereafter, he made inquiries from accused Wazid Ali and Naveen. Mother of accused Wazid met him in the fields and told that prosecutrix was not with them. He alongwith his uncle Resham Singh went to the house of accused Wazid and there they met with accused Wazid alongwith his mother and father, but they told that prosecutrix was not with them. Thereafter, he lodged complaint with the police Ex. PW3/A. On the next day, prosecutrix was recovered by the police. As this witness has not supported the case of the prosecution, hence, he has been cross examined by learned Addl. PP for State, wherein PW3 Kulwant Singh has stated that he does not remember if his sister i.e. prosecutrix went missing on 21/07/2002 at about 2.30 p.m., but has admitted that he had named accused Wazid, Naveen and Sanjay, raising doubt upon them, as the persons behind kidnapping of his sister.
PW11, the prosecutrix, has stated in this respect that about four years back, she was living in Village Jhangola No.2, Delhi. She used to work in the fields at that time. About four years before, exact date, month and year, she does not remember, at about 4.00 p.m., accused Wazid met her. She was working in the fields of accused Wazid as a labourer. She demanded her wages from accused Wazid, when he was in his fields. Accused Wazid told her to come to his house to take the same. Accused Wazid used to tell her that he wanted to marry her. On SC No. 06/01/11 8/33 that day also, he repeated that he wanted to marry her. This was continuing for the last about four months. Accused Wazid was sexually exploiting her since then by promising to marry her. He used to do sexual intercourse with her in the fields at the tubewell. He had done sexual intercourse with her 1011 times ever since he first represented to her that he wanted to marry her. PW11, the prosecutrix, has further deposed that believing the representation of accused Wazid, she used to submit voluntarily and that is how sexual intercourse used to take place between them.
PW11, the prosecutrix, has further deposed that she went to the house of accused Wazid to take the money. His house could be reached within half an hour in a vehicle. There, accused Wazid told her that he will take her to some hotel for having tea. At the hotel, they had tea and thereafter accused Wazid took her to his fields at the tubewell, where two more boys had come. Accused Sanjay was one of them. There, accused Wazid and Sanjay committed sexual intercourse with her without her consent. She raised noise, when the accused were committing sexual intercourse with her. Both the accused threatened her that in case, she would raise noise, they would kill her. PW11, the prosecutrix, has further deposed that thereafter, accused Wazid and Sanjay took her from there on the motorcycle and dropped her outside the police station, on the road. She straightway went to PS Kundli and told them her story. After hearing the same, they advised her to go to PS Alipur, which had jurisdiction in the matter. She told her entire story at PS Alipur. Her statement was recorded. She pointed out the field as well as the tubewell, where she was subjected to rape.
While giving statement to learned Metropolitan Magistrate U/s. 164 of SC No. 06/01/11 9/33 Cr.P.C., the prosecutrix, had told that on 21/07/2002, the day was Sunday. She used to work alongwith other women of the village in the field. She used to work on daily wages alongwith other women . In the village, there was one Wazid, who had given daily wages to other women, but he did not give her the wages. When she asked him to give wages, he stated that he will give her wages and asked her to reach at his house. On the same day, she had gone to the house of accused at Palla Village. There, accused Wazid met her and stated that he will just now give her wages. Accused Wazid had taken her to a hotel, where he had not given her Rs. 80/. There, one Sanjay also met him. Both of them took her in a school and confined her. She was taken from the school at about 8/8.30 p.m. at night. There, one Naveen had also come and thereafter, all the three had taken her to the field and committed wrong deed. First of all, accused Wazid had made wrong deed. Thereafter, accused Sanjay and at last, accused Naveen had made wrong deed on her person against her will. In the next morning, from there, accused Naveen and Wazid had taken her to Trans Yamuna. There, they left her. In the evening, accused Naveen and Wazid took her from Trans Yamuna and left her at Kundli. There, she met with one police man, who had taken her to PS. From the statement given to learned Metropolitan Magistrate recorded U/s. 164 of Cr.P.C, according to the prosecutrix, she was taken to a hotel on the pretext of payment of wages by accused Wazid, where one Sanjay met and she was confined in a school. She was taken from the school at about 8 or 8.30 p.m. in the night. One Naveen also came there. She was taken to a field, where she was raped by the accused persons. Thereafter, she was taken to Trans Yamuna and was left there. Again, she was taken back by accused Wazid and Naveen from SC No. 06/01/11 10/33 Trans Yamuna and was left at Kundli, where she met with a police official.
According to the deposition before the Court made by the prosecutrix, she had done sexual intercourse with accused Wazid 1011 times before the incident as accused wanted to marry her, so, she used to do it voluntarily. According to further deposition of PW11, the prosecutrix, was raped by accused Wazid and Sanjay only without her consent in the field at the tubewell, after having tea in a hotel. PW11, the prosecutrix, has further deposed that she was threatened by both the accused that if she would raise noise, they will kill her and both left her outside the police station on the road, on a motorcycle. She went to PS Kundli and thereafter to PS Alipur and pointed out the field, where she was subjected to rape.
Both the statements are entirely different from each other. Before the Court, PW11, the prosecutrix, has not named accused Naveen as one of the accused, who had also committed rape with her. The prosecutrix has also not deposed about the fact that she was taken to Trans Yamuna and was brought back in the evening. The prosecutrix has also deposed before the Court that she was confined in a school by the accused persons and was taken back in the evening at about 8.00 or 8.30 p.m. PW11, the prosecutrix, has specifically denied the suggestion that accused Naveen had also committed rape on her alongwith remaining two of the accused persons on 21/07/2002 at the tubewell of accused Wazid. She has also been confronted with her statement recorded U/s. 164 of Cr.P.C. Ex. PW11/A and her statement recorded U/s. 161 of Cr.P.C. Ex. PW11/B. PW11, the prosecutrix, has admitted in the cross examination that she SC No. 06/01/11 11/33 was taken from tubewell to Dahishara road school on motorcycle and thereafter she was raped by accused Wazid and Sanjay, which is also contradictory to the statement recorded U/s. 161 of Cr.P.C., wherein prosecutrix has stated that she was raped by accused Wazid firstly in the fields and again in Dahishara road School. PW11, the prosecutrix, has further admitted that third accused i.e. accused Naveen was not with them, which is also contradictory to the statement recorded U/s. 164 of Cr.P.C., wherein she has also told that accused Naveen had also committed rape with her in the field. Conduct of PW11, the prosecutrix, is also unnatural because if accused Wazid and Sanjay had committed rape with her without her consent, then why they will drop her outside the PS on the road on the motorcycle. In further cross examination, again, the prosecutrix, has testified that only she alongwith accused Wazid and Sanjay had gone to Dahishara road school on motorcycle, where she was raped by accused Wazid and Sanjay.
PW11, the prosecutrix, has further admitted that one more boy had come to the tubewell with accused Sanjay on the motorcycle, but he did not commit wrong act with her and had left that place. The said third boy has not been identified by the prosecutrix as accused Naveen of this case.
The prosecutrix has been confronted with her statement recorded U/s. 164 of Cr.P.C. Ex. PW11/A, where it is not so recorded that two persons including Sanjay had come to the field after half an hour of their arrival and there she was raped and when she raised noise, the accused persons, while committing sexual intercourse with her, threatened her that in case she would raise noise, they will kill her and then accused Wazid and Sanjay took her on motorcycle and dropped her outside the PS on the road and she straightway went to PS Kundli and SC No. 06/01/11 12/33 told hem her story, who advised her to go to PS Alipur. In such circumstances, PW11, the prosecutrix, has entirely changed her statement about the manner, in which, she was raped and at what time. She has further deposed accused Naveen as one of the accused, who had committed rape with her and has not identified accused Naveen before the Court, so, she cannot be relied upon.
In further cross examination, PW11, the prosecutrix, has stated that on that day, when she made statement Ex. PW11/A, somebody had given her something in the tea and thereafter she named accused Naveen also in that statement. She was not in full senses at the time of making statement U/s. 164 of Cr.P.C. Police officials had taken her to Court for making statement U/s. 164 of Cr.P.C. The statement of prosecutrix was recorded Ex. PW11/A on 03/08/2002, whereas she has been examined before the Court for the first time on 07/12/2006 and at the time of exhibiting statement in her examination in chief, she did not point out to the Court that she was not in her full senses at the time of making statement, so, by saying so in the cross examination means that she wants to deny the statement made U/s. 164 of Cr.P.C. and has twisted whole of the story suitable to her. IO has also not investigated the case according to the statement recorded U/s. 164 of Cr.P.C. No other women in the village, who were working with the prosecutrix, have been examined. It is not known as to in which hotel, prosecutrix was taken by accused Wazid. No inquiry has been made as to in which school the prosecutrix was confined and was taken out from the school at about 8.00 or 8.30 p.m. It is also not investigated as to where in Trans Yamuna after committing rape, accused persons had left the prosecutrix and from where in the evening, she was taken from Trans Yamuna and was left at Kundli, which shows that facts told SC No. 06/01/11 13/33 by the prosecutrix to learned Metropolitan Magistrate in her statement recorded U/s. 164 of Cr.P.C. per se were false and the same could not be substantiated, so, entire case of the prosecution has been changed by the prosecutrix by deposing in different manner about rape committed with her by the accused persons.
According to cross examination of PW11, the prosecutrix, accused Sanjay had taken her to PS Kundli, whereas in the chief examination, she has stated that both accused Wazid and Sanjay dropped her outside the PS on road, on motorcycle, so, it is not certain as to whether she was dropped at PS Kundli by the accused persons. There could not be any reason for the accused persons if they had committed rape with the prosecutrix to drop her at PS Alipur. More so, from the examination in chief and cross examination, it is also not certain whether she was dropped there by accused Wazid and Sanjay or only by accused Sanjay. Even if we assume that prosecutrix was dropped at PS Kundli by the accused persons, then it is not explained as to why she had not raised any alarm and why she did not disclose to anyone that she was sexually assaulted by the accused persons.
According to the prosecutrix, from the field, she was taken to school on motorcycle, but she has been confronted with this fact with her statement recorded U/s. 164 of Cr.P.C Ex. PW11/A, where it is not so recorded.
According to Ex. PW9/A i.e. seizure memo of the prosecutrix, HC Tasvir Rathi alongwith Constable Ravinder, while on patrolling duty, reached at Singhu Border and at a bus stand, they found the prosecutrix, who was weeping and disclosed that she was raped by three boys, so, she was taken and was produced before ASI Jagbir Singh of PS Alipur.
No time has been mentioned in the memo, but date has been altered SC No. 06/01/11 14/33 from 22/07/2002 to 23/07/2002, which also raises doubt as to whether the prosecutrix was recovered on 22/07/2202 itself or on 23/07/2002. From this recovery memo of the prosecutrix, the deposition of prosecutrix that she was dropped at PS Kundli, from where, she was advised to go to PS Alipur and she straightway went to PS Alipur and narrated the incident, itself is false because prosecutrix was recovered by the police officials during partrolling duty, while she was sitting at bus stand and was weeping.
According to DD No.5A dated 22/07/2002 of PS Alipur Ex.PW19/A, at about 12.23 p.m. day, wireless operator informed the Duty Officer that there was a girl at Jhangola No.2, bus stand. It was handed over to ASI Jagbir Singh for necessary action, who left with Constable Rajender. According to PCR form Ex. PW17/A, on 22/07/2002, at about 12.15, on receipt of a call of quarrel at Jhangola No.2, Delhi36 bus stand, they reached there and came to know that prosecutrix, aged about 14 years, had gone for work in the night and there was some dispute with Wazid. According to PW19, when he reached there, he came to know that no quarrel had taken place, but he came to know that one girl i.e. prosecutrix was missing from her house. From the PCR form, it seems that prosecutrix was present there, otherwise the name, father's name and age could not have been filled up in the PCR form and as call was only about the quarrel and it was not informed as to who were the parties to the quarrel. So, PW19 ASI Jagbir Singh has also not deposed truly before the Court in this respect.
It is not disclosed by PW19 ASI Jagbir Singh as to from where he came to know that one girl i.e. prosecutrix was missing from her house. It seems that prosecutrix was recovered from the place of quarrel on 22/07/2002 itself and after SC No. 06/01/11 15/33 registering the case, on 22/07/2002, at about 5.15 p.m., recovery of prosecutrix has been shown on 23/07/2003 and due to this reason, date of the recovery memo of the prosecutrix has been altered from 22/07/2002 to 23/07/2002. No PCR official has been cited as a witness to this case, who had reached at the place of quarrel on 22/07/2002, so, there is no corroboration to the deposition of PW19 ASI Jagbir Singh that when he reached at the spot, he came to know that no quarrel had taken place, but the prosecutrix was found missing.
According to PW11, the prosecutrix, she came back to her house at about 12 noon after doing her job in the field of accused Wazid and again as she was called. She reached at the house of accused Wazid at about 5.00 p.m and within 15 minutes, they reached at a small hotel, where she demanded her wages from the accused, but accused told that she should accompany him to the field and there, he would make payment.
Incident is dated 21/07/2002 and according to the cross examination of the prosecutrix, she came back to her house at about 12 noon after doing her job in the field of accused Wazid and again reached at the house of accused Wazid at about 5.00 p.m. According to the deposition of the prosecutrix, she was raped in the field and thereafter, accused Wazid and Sanjay took her on the motorcycle and dropper her outside the PS, on the road. She straightway went to PS Kundli and told them her story. After hearing the same, they advised her to go to PS Kundli. She told her entire story at PS Alipur.
From these facts, it is clear that the prosecutrix had reached at PS Alipur on 21/07/2002 itself and not on 22/07/2002 or 23/07/2002, which is contradictory to the PCR form Ex. PW17/A and also contradictory to DD No.5A SC No. 06/01/11 16/33 dated 22/07/2002 Ex. PW19/A and further contradictory with the recovery memo of the prosecutrix allegedly dated 23/07/2002. In such circumstances, it is not clear whether the prosecutrix reached at PS Alipur on 21/07/2002 itself or she was recovered by HC Tasveer Rathi and Constable Ravinder from Singhu Border bus stand on 23/07/2002 or she was found present at bus stand Jhangola No.2 in a quarrel as per Ex. PW17/A. During examination, PW11, the prosecutrix, has admitted that she did not raise any noise or tried to flee away, while she was being taken by accused Wazid and Sanjay on motorcycle and again has stated that she was taken from the school by accused Sanjay and Naveen on motorcycle. She did not raise noise because her mouth was closed, so, at the same time, prosecutrixs has deposed in a contradictory manner, hence, she cannot be relied upon about the facts, as deposed by her.
PW11, the prosecutrix, has admitted in the cross examination that she had also registered a case in PS Bhewari, Haryana, in the year 2003, where her Jeth had taken Rs. 30,000/ from the accused persons in case FIR No. 07/03, so, she became hostile witness in that case. This conduct of the prosecutrix shows that she is habitual in getting registered such cases and thereafter becoming hostile to the case of the prosecution after extorting money from the accused persons and due to this reason, accused persons seems to have been falsely implicated in this case by the prosecutrix.
According to PW11, the prosecutrix, after the incident of rape, accused Wazid and Sanjay dropped her outside the PS. She went to PS Kundli and told her story, where she was advised to go to PS Alipur. She told her entire story at PS SC No. 06/01/11 17/33 Alipur and her statement was recorded. PW11, the prosecutrix, has also been cross examined by learned Addl. PP, wherein it has not been suggested even by learned Addl. PP to the prosecutrix that she was taken from Singhu border by the police officials.
According to the deposition of PW11, the prosecutrix, she has admitted in the cross examination conducted by learned Addl. PP that incident had happened on 21/07/2002 and if we go through the statement of PW11, the prosecutrix, on the same day, she was raped by the accused persons and was dropped by accused Wazid and Sanjay outside the PS on road. So, if she was dropped on 21/07/2002 outside the PS, then where she had gone in the night of 21/07/2002 and where she remained whole of the day on 22/07/2002 and further how she reached at Singhu border, where she was found present by PW9 Constable Ravinder Singh and PW12 HC Tasveer Rathi at about 8.00 a.m. Date and time of recovery of the prosecutrix from Singhu border is entirely different from the deposition of the prosecutrix. The prosecutrix has been cross examined about the time only to the extent that on the day of incident after doing her job, she came back to her house at 12 noon and again, she reached at the house of accused Wazid at about 5.00 p.m. PW11, the prosecutrix has nowhere deposed that in the night of 21/07/2002, she was detained by the accused persons somewhere nor she has deposed as to where she remained on 22/07/2002, so, in absence of any explanation in this respect, the testimony of PW11, the prosecutrix, seems to be doubtful as to whether she reached at PS Kundli and thereafter at PS Alipur on the day of incident itself or she was recovered by the police officials i.e. PW9 Constable Ravinder Singh and PW12 HC Tasveer Rathi, while they were on SC No. 06/01/11 18/33 patrolling duty at Singhu border on 23/07/2002. The period of night of 21/07/2002, whole of the day of 22/07/2002 and night of 22/07/2002 is not explained in any manner, so, there seems to be a calculative move for getting registered a case against the accused persons on 22/07/2002 and in further calculative move, the circumstances were fabricated to show that she was recovered from Singhu border by the police officials on 23/07/2002.
PW19 ASI Jagbir Singh, before whom the prosecutrix was produced by PW9 constable Ravinder Singh and PW12 HC Tasveer Rathi, got registered a case on the statement of the prosecutrix Ex. PW3/A by preparing his endorsement Ex. PW10/B and handed over the same to PW6 Constable Rajender, who got registered the case vide FIR Ex. PW10/A. PW10 HC Jai Bhagwan has corroborated this fact that on 22/07/2002, while he was working as duty officer at PS Alipur from 4.00 p.m. to 12 night, he received a tehrir at about 5.15 p.m. through PW6 Constable Rajender, sent by PW19 ASI Jagbir Singh for registration of FIR, on the basis of which, he recorded FIR of this case, copy of which is Ex. PW10/A. He has also proved his endorsement on tehrir Ex. PW10/B. He has also produced original FIR register.
PW19 ASI Jagbir Singh has further deposed that PW9 Constable Ravinder Singh and PW12 HC Tasveer Rathi produced the prosecutrix before him. He prepared recovery memo of the same Ex. PW9/A and recorded statement of the prosecutrix. She was sent for her medical examination at BJRM hospital vide MLC Ex. PW1/A with PW5 lady Constable Mithlesh, who further produced the exhibits before him given by the doctor, which were seized vide memo Ex. PW5/A. PW19 ASI Jagbir Singh has further deposed that on the same day, the SC No. 06/01/11 19/33 prosecutrix was produced before the Magistrate for recording her statement U/s. 164 of Cr.P.C., but the same could not be recorded and she was remanded to Nirmal Chaya. Her statement was recorded U/s. 164 of Cr.P.C. vide Ex. PW11/A. Learned defence counsel has further contended that according to Ex. PW11/A, statement of the prosecutrix was recorded on 03/08/2002, whereas she was recovered on 23/07/2002, hence, it is not explained as to why immediately statement of prosecutrix could not be got recorded from the concerned Metropolitan Magistrate and in between, there was possibility of due deliberations of tutoring to falsely implicate the accused persons in this case.
Learned defence counsel has further contended that according to statement Ex. PW11/A, the learned Metropolitan Magistrate has pointed out that statement was adjourned thrice or four times due to various reasons and prosecutrix was earlier sent to Nirmal Chaya, but was released by the concerned Court, which shows that after due deliberations and after well consultation because prior to that, she was released by the concerned Court, so, she cannot be relied upon.
PW5 lady Constable Mithlesh has stated that on 23/07/2002, she joined the investigation of this case and as per directions of IO, she took the prosecutrix to BJRM hospital, where she was medically examined. The exhibits were also seized vide memo Ex. PW5/A. PW18 Sh. Atul Kumar Garg, the then Metropolitan Magistrate, has deposed that on 03/08/2002, an application moved by the IO, was marked to him for recording statement of the prosecutrix. He conducted the proceedings Ex. PW18/A. He also recorded statement of prosecutrix Ex. PW11/A and gave SC No. 06/01/11 20/33 certificate therein Ex. PW18/B. One copy of the statement proceedings was allowed to be given to the IO on application. PW18 has further deposed that on 26/08/2002, IO moved an application Ex. PW18/C for TIP of accused Naveen, but the same was dismissed vide order dated 13/09/2002 Ex. PW18/D. PW1 Dr. Sunita Gupta has appeared in place of Dr. J. Kishan Jadia. She has stated that she is acquainted with the writing and signatures of Dr. J. Kishan Jadia, who has left the hospital and his present whereabouts are not known. PW1 has further deposed that on 23/07/2002, at about 12.45 p.m., Dr. J. Kishan Jadia examined the prosecutrix, being referred for gynaecological examination by Dr. Neeraj Choudhary, who was brought with alleged history of rape by three persons since 21/07/2002, 3.30 p.m. to 10.30 p.m. on 22/07/2002. Total number of coitus according to history six times by three persons. Last coitus was done at 10 a.m. LMP was on 12/07/2002.
PW1 Dr. Sunita Gupta has further deposed that on local examination, secondary sexual characters were found well developed. No injury or scar mark over breast, back or perineal region were found. The prosecutrix was not found wearing undergarments and had taken bath and had changed the clothes.
PW1 Dr. Sunita Gupta has further deposed that on local examination, hymen was found torn. No fresh injury was seen. Vaginal swab was taken and it was handed over to lady Constable. Glass slide of vaginal swab was also taken. Vagina admitted two fingers easily.
Learned defence counsel has contended that in the cross examination, PW1 Dr. Sunita Gupta has clearly stated that forcible sexual intercourse is ruled out, which shows that prosecutrix was not raped by the accused persons, as SC No. 06/01/11 21/33 alleged. Learned defence counsel has further contended that secondary sexual characters were well developed, which shows that prosecutrix was not minor.
Learned defence counsel has further contended that according to the deposition of PW1 Dr. Sunita Gupta, as per MLC Ex. PW1/A, sexual intercourse was done with the prosecutrix six times by three persons and lastly, it was done at 10 a.m. This all was done in between 21/07/2002 from 3.30 to 10.30 p.m. on 22/07/2002. Learned defence counsel has further contended that PW11, the prosecutrix, has nowhere deposed that she remained in the custody of accused persons from 21/07/2002 till 22/07/2002. Learned defence counsel has further contended that according to deposition of PW11, the prosecutrix, she was raped by accused Wazid and Sanjay in the field. Even she was threated by the accused persons and thereafter, she was taken on motorcycle and accused Wazid and Sanjay dropped her outside the PS, on road. Learned defence counsel has further contended that PW11, the prosecutrix, has stated that date of incident is 21/07/2002 and even she had not disclosed to the learned Metropolitan Magistrate, while recording her statement U/s. 164 of Cr.P.C., that she was confined for three days, rather in a different manner, the prosecutrix told to learned Metropolitan Magistrate that she was taken to a school and confined. From there, she was taken at about 8/8.30 p.m. at night. Again, accused persons took her in the field and committed rape with her. In the next morning, she was taken to Trans Yamuna. There, they left her. In the evening,again, she was picked up from Trans Yamuna and was left at Kundli, where she met with one police man. Learned defence counsel has further contended that even if we believe this statement given to the learned Metropolitan Magistrate, although prosecutrix has not corroborated the SC No. 06/01/11 22/33 same, only circumstances upto 22/07/02 have been disclosed and it is not disclosed by the prosecutrix as to where she remained in the night of 22/07/2002.
According to the statement recorded U/s. 161 of Cr.P.C dated 23/07/2002, the prosecutrix was raped on 21/07/2002 by the accused persons in the field and thereafter, she was taken to Dahishara school, where she was again raped and thereafter, all the three accused persons fled away from there. She remained in the school and went to Kundli to report the matter, but she was sent to PS Alipur. So, these facts are also not corroborating with the MLC of prosecutrix Ex. PW1/A. According to the deposition of the prosecutrix, accused persons were known to her, but at the time of her medical examination on 23/07/2002 in BJRM hospital, she did not disclose the names of accused persons to the doctor, which shows that the accused persons have been named after due deliberation and consultation with ulterior motive to extort money from the accused persons. Beside the unexplained presence of the prosecutrix in the night of 22/07/2002 and morning of 23/07/2002, it is not known when she had taken bath and had changed the clothes because according to DD entry and seizure memo of the prosecutrix, she was found weeping at Singhu border on 23/07/2002 and she was produced before ASI Jagbir Singh in PS Alipur. Even in the recovery memo, the prosecutrix did not disclose that she was raped by the accused persons,namely, Wazid, Naveen and Sanjay, rather it is mentioned in seizure memo Ex. PW9/A that she was raped by three boys forcibly, which shows that till that time, accused persons were not in the picture and from the alteration in the date of recovery memo Ex. PW9/A from 22/07/2002 to 23/07/2002, it seems that firstly, complaint was got registered and thereafter, recovery memo was fabricated showing that the prosecutrix was SC No. 06/01/11 23/33 recovered on 23/07/2002. The prosecutrix has nowhere stated that she had taken bath and had changed clothes either in her statement recorded U/s. 161 of Cr.P.C. or recorded U/s. 164 of Cr.P.C. or statement given before the Court, which shows that it was a fabricated and concocted story and in a well planned conspiracy, recovery of prosecutrix was shown from Singhu Border on 23/07/2002, as deposed by the witnesses.
From the deposition of PW1 Dr. Sunita Gupta, it is clear that prosecutrix was not raped forcibly by the accused persons or by other persons in any manner because no injury or scar mark on breasts, back of perineal region was seen. It is also clear from the deposition of PW1 Dr. Sunita Gupta that the prosecutrix was habitual to sexual intercourse as her vagina was admitting two fingers easily and no fresh injury was seen. Hymen was found torn, but PW1 Dr. Sunita Gupta has not stated that hymen was torn fresh. So, it seems to be old one and possibility of forcible sexual intercourse has been ruled out by PW1 Dr. Sunita Gupta. So, the whole of the case is false and fabricated and the witnesses cannot be relied upon in this case.
According to PW15 HC Tej Pal, on 23/07/2002, PW19 ASI Jagbir Singh deposited blood sample, underwear and sample seal, with the seal of MS BJRM hospital with the then MHC(M) HC Rati Ram, who made entry at serial No. 1121 in register No. 19, copy of which is Ex. PW15/A1. PW15 has further deposed that on the same day, PW19 ASI Jagbir Singh also deposited one slide seal, one vaginal swab seal and sample seal, with the seal of MS BJRM hospital with the then MHC(M) HC Rati Ram, who made entry at serial No. 1122 in register No.19, copy of which is Ex. PW15/A2. PW15 has further deposed that SC No. 06/01/11 24/33 on 24/07/2002, PW19 ASI Jagbir Singh also deposited one pullanda, blood sample in a vial of accused Naveen sealed with the seal of MS BJRM hospital and sample seal with the then MHC(M) HC Rati Ram, who made entry at serial No. 1129 in register No. 19, copy of which is Ex. PW15/A3. PW15 has further deposed that ASI Jagbir Singh also deposited one pullanda of blood sample in a vial, one underwear of accused Wazid and sealed pullanda sealed with the seal of MS BJRM Hospital and sample seal with the then MHC(M) HC Rati Ram, who made entry in this regard at serial No. 1129 in register No. 19, copy of which is Ex. PW15/A3.
PW15 HC Tejpal has further stated that he can identify the writing and signatures of HC Rati Ram, who was MHC(M) at PS Alipur, as he had seen him signing and writing during the course of his service at PS Alipur.
PW15 HC Tej Pal has further deposed that he succeeded previous MHC(M ) HC Rati Ram and on 31/10/2002, as per the directions of IO, he sent eleven exhibits through Ct Nixon K. J. to CFSL Hyderabad vide RC No. 144/21/02 and made entry in this respect in register No. 19 in his own writing. Constable Nixon K. J. after depositing the exhibits handed over the receipt to him. Copy of the RC is Ex. PW15/B. PW15 has not been cross examined by learned defence counsel in any manner.
PW13 Constable Nixon K.J. has further corroborated these facts and has stated that on 341/10/2002, he received seven parcels duly sealed with the seal of MS BJRM, Jahangir Puri, from MHC(M) as per the directions of IO to deposit the same at CFSL Hyderabad. He went there and deposited the same on 05/11/2002 vide RC No. 144/21/02 and handed over the receipt on RC to SC No. 06/01/11 25/33 MHC(M).
Learned defence counsel has further contended that both PW13 Ct Nixon K.J. and PW15 HC Tej Pal have contradicted each other regarding quantity of the exhibits. PW15 HC Tej Pal has stated that 11 exhibits were sent, whereas PW13 Ct Nixon K. J. has stated that seven sealed pullandas were sent to CFSL, Hyderabad. So, it is not known, who has deposed truly before the Court.
FSL report was tendered in evidence and the same is Ex. PX. It is admissible U/s. 293 of Cr.P.C. According to the same, Ex. 1 was vaginal smear slide, Ex. 2 was vaginal swab, Ex. 3 was reddish brown fluid,Ex. 4 was reddish brown fluid, Ex. 5 was underwear, Ex. 6 was reddish brown fluid and Ex. 7 was underwear.
According to the report, human blood was detected on Ex. 3, 4 and 6 i.e. blood sample of all the three accused persons and blood group could not be detected on Ex. 3, 4 and 6 i.e. blood sample of the accused persons. It is further reported that semen could not be detected on Ex. 1, 2, 5 and 7 i.e. vaginal smear slide and vaginal swab of the prosecutrix and underwear of the accused persons. So, prosecution has not been able to connect the exhibits of the prosecutrix with the accused persons in any manner.
According to the deposition of PW19 ASI Jagbir Singh, he made search for the accused persons alongwith Constable Ashok and brother of prosecutrix Kulwant Singh. Accused Naveen, Wazid and Sanjay were arrested in the evening at about 7.00 p.m. from Thokar No. 7, Jhangola, Delhi, vide memos Ex. PW7/A, Ex. PW7/B and Ex. PW7/C. Their personal searches were conducted vide memos Ex. PW7/D, Ex. PW7/E and Ex. PW7/F. They were sent for medical SC No. 06/01/11 26/33 examination vide MLC of accused Wazid Ex. PW14/A, of accused Naveen Ex. PW14/B and that of accused Sanjay Ex. PW14/C. Exhibits given by the doctor of accused persons were seized vide memos Ex. PW8/A, Ex. PW8/B and Ex. PW19/B. PW19 has further deposed that he prepared site plans of two places of occurrence i.e. tube well and Senior Secondary School, Palla, at the instance of prosecutrix Ex. PW19/C and Ex. PW19/D. PW3 Kulwant singh has stated that accused Naveen, Wazid and Sanjay were arrested from Singhu Border, Haryana, but he was not present at that time. PW7 Constable Ashok Kumar has stated that on 23/07/2002, he joined investigation of this case with IO ASI Jagbir Singh and after making inquiries and searching accused persons, they alongwith complainant, at about 7.00 p.m., reached at Thokhar No.7, Village Jhangola, where on the pointing of complainant Kulwant, all the three accused persons,namely, Naveen, Wazid and Sanjay were apprehended and were arrested.
PW7 has further deposed the same facts as of IO regarding the arrest and personal search of the accused persons.
According to PW7 Constable Ashok Kumar and PW19 ASI Jagbir Singh, accused persons were arrested from Thokhar No. 7, Village Jhangola, on the pointing of complainant, whereas complainant PW3 has not supported the case of the prosecution regarding the arrest of accused persons on his pointing, rather has stated that accused persons were arrested from Singhu border, but he was not present there at that time. So, the arrest of the accused persons on the date, time and place and the manner, as deposed by the witnesses, is doubtful. SC No. 06/01/11 27/33
Learned defence counsel has further contended that from the cross examination of PW19 ASI Jagbir Singh, it is clear that he did not find anything, which could be collected as case property from the tubewell room or from senior secondary school, which shows that prosecutrix was not raped on the day, time and place, in the manner, as deposed by her. Learned defence counsel has further contended that according to cross examination of PW19, he made inquiries from the Chowkidar of Senior Secondary School, Palla, but he did not record statement of Chowkidar, which also shows that facts, as deposed by the prosecutrix about the school are false and no such incident had taken place.
PW8 HC Ramesh has deposed about the medical examination of the accused persons from BJRM hospital and he has further deposed that he collected blood sample and undergarments of the accused persons, which he handed over to the IO and were seized vide memos Ex. PW8/A and Ex. PW8/B. PW14 Dr. Sardaman Singh has proved the MLCs of all the accused persons Wazid, Naveen and Sanjay , which were prepared by Dr. Shafiq, who has left the hospital and his present whereabouts are not known. PW14 is acquainted with the writing and signatures of Dr. Shafiq as he had seen him signing and writing during the official course of duties in BJRM hospital.
In support of his contentions, learned defence counsel has relied upon 2010 (1) Crimes 580 (Del.) tilted as Pappu V. State of Delhi, wherein it has been held that if victim girl admitted in evidence that she was deposing before the Court at the behest of her mother, then conviction could not be sustained.
Learned defence counsel has contended that in this case also, the prosecutrix has admitted that earlier also, she got registered a case of rape, SC No. 06/01/11 28/33 wherein she turned hostile after her Jeth had accepted Rs. 30,000/ from the accused persons, so, the prosecutrix should not be relied upon.
Learned defence counsel has further relied upon (2008) 2 Supreme Court Cases (Cri) 207 titled as Radhu V. State of Madhya Pradesh, wherein it has been held that if evidence of prosecutrix is full of discrepancies and do not inspire confidence and further there is no corroboration and if medical evidence is also not corroborating about the sexual intercourse and no injury was found on the body, then the prosecutrix cannot be found trustworthy and accused is liable to be acquitted.
Learned defence counsel has further relied upon AIR 2009 Supreme Court 858 titled as Rajoo & Ors. V. State of M.P., wherein it has been held that in a case of gang rape, if no injury was found on her person and doctor is unable to give opinion about rape as prosecutrix was habitual to sexual intercourse, then she cannot be relied upon. It is further held that if it is showing that prosecutrix was involved in some kind of improper activity, then accused is liable to be acquitted.
Learned defence counsel has further relied upon 2011 (1) JCC 520 titled as Shashi Chaudhary V. Ram Kumar & Anr., wherein it has been held that if prosecutrix has not explained for not making hue and cry when the alleged offence had taken place nor there is any explanation for failure on the part of prosecutrix to lodge the complaint with the police immediately or within a reasonable time, then it is doubtful and giving a different version to the doctor as compared to her deposition in the Court, make her unreliable.
Learned defence counsel has further relied upon 2011 (3) JCC 1882 SC No. 06/01/11 29/33 titled as State V. Pappu @ Yadram & Anr., wherein it has been held that if there are four different versions given by the prosecutrix as to the actual act committed by the accused persons and if it is not deposed as to how she was enticed by the accused persons nor she made any allegation of force or threat, then the story of the prosecutrix cannot be relied upon.
The contentions of learned defence counsel are forceful regarding the contradictory depositions of the witnesses, which cannot be relied upon. The judgments relied upon by the learned defence counsel are applicable to the facts and circumstances of this case. The prosecutrix has also changed her statement again and again and her recovery, as deposed by the police witnesses, is not corroborating with her statement given to the learned Metropolitan Magistrate or with the statement given before the Court. The prosecutrix has nowhere stated that she was kidnapped by accused Wazid or was enticed in any manner because the contradictory deposition of the prosecutrix is not inspiring any confidence, which is further in contradiction with the facts, as deposed by her before the Court and as deposed by the police witnesses about her recovery, so, I am not inclined to rely upon the deposition of the prosecutrix that she was called by accused Waizd at his house to pay her daily wages and thereafter she was taken for tea and then was taken to the field.
The prosecutrix has nowhere deposed that she was kidnapped in any manner or was enticed by accused Wazid in any manner, rather if we believe her testimony, then she had reached at the house of accused Wazid at her own.
Accordingly, prosecution has not been able to prove offence U/s. 363 of IPC beyond reasonable doubts. Accordingly, accused Wazid is SC No. 06/01/11 30/33 acquitted for the same.
From the deposition of the prosecutrix, as it has not been proved that the prosecutrix was kidnapped or abducted by accused Wazid, hence, consequently, it is also not proved that she was kidnapped or abducted by accused Wazid with intent to compel her to marry against her will or she was forced or enticed to do illicit intercourse.
Accordingly, prosecution has also not been able to prove offence U/s. 366 of IPC beyond reasonable doubts against accused Wazid, for which, he is acquitted.
The prosecution has also not been able to prove the fact that prosecutrix was gang raped by all the three accused persons because in her statement given to the learned Metropolitan Magistrate U/s. 161 of Cr.P.C., she has given different facts, whereas before the Court, she has deposed entirely different facts and it is not explained as to where she remained after 21/07/2002 till the alleged date of her recovery i.e. 23/07/2002. More so, the medical examination report is not supporting the fact that she was raped forcibly without her consent. According to the report, she was habitual to sexual intercourse and hymen was found old torn. Possibility of forcible sexual intercourse has been ruled out by PW1 Dr. Sunita Gupta. The prosecutrix has also not named accused Naveen as one of the coaccused, who had also committed rape with her and this is a major contradiction in her statement given to the Court and given to the learned Metropolitan Magistrate.
The unexplained circumstances, without the time and place, as deposed by the prosecutrix as to how she got registered the case and how she was SC No. 06/01/11 31/33 recovered and as to whether she was actually recovered or not, or herself had gone to PS, also creates doubt on her testimony about the fact that she was gang raped by the accused persons.
The conduct of the prosecutrix is also material in this case as she has admitted in the cross examination that earlier she also got registered a case of rape in Haryana, where her Jeth accepted Rs. 30,000/ from accused and she became hostile. So, in this case also, the contradictions and circumstances, which have been deposed by the prosecutrix from time to time during the investigation and before the Court, are material and the same are not corroborating in any manner to the case of the prosecution, as deposed by the police witnesses. The prosecutrix did not name accused persons at the time of her alleged recovery or at the time of her medical examination.
This fact is also contradicted by the witnesses as to whether the accused persons were arrested in this case on the pointing of PW3 Kulwant Singh, brother of prosecutrix, so, identity of the accused persons is also not proved beyond reasonable doubts because if the accused persons were not arrested at the pointing of PW3 Kulwant Singh, then they were not known to the police officials nor they were named in the recovery memo or in the medical examination of the prosecutrix, hence, the testimonies of the witnesses are not inspiring any confidence and they are not trustworthy, so, I am not inclined to rely upon them. PW1 Dr. Sunita Gupta has also ruled out the possibility of forcible sexual intercourse with the prosecutrix. FSL report has also not connected the accused persons with the prosecutrix in any manner.
SC No. 06/01/11 32/33
Accordingly, prosecution has also not been able to prove the offence U/s. 376 (2) (g) of IPC beyond reasonable doubts. Accordingly, all the three accused persons are acquitted for the same.
Announced in Open Court on (Virender Kumar Goyal)
dated 16th of April, 2012 Additional Sessions Judge
Fast Track Court /Rohini : Delhi
SC No. 06/01/11 33/33
SC No. 06/01/11 34/33