Delhi District Court
State vs . 1). Sanjeev Kumar @ Kala on 22 January, 2013
1
FIR No. 20/10
PS Shahbad Dairy
IN THE COURT OF SH. MAHESH CHANDER GUPTA :
ADDITIONAL SESSIONS JUDGE : SPECIAL FAST TRACT
COURT : NORTHWEST & OUTER DISTRICT : DELHI
SESSIONS CASE NO. : 110/13
Unique ID No. : 02404R0112092010
STATE VS. 1). SANJEEV KUMAR @ KALA
S/O SH. PREM SINGH
R/O H.NO. D20
GUPTA COLONY, PEHLAD VIHAR
DELHI.
2). SUNIL
S/O HARI KISHAN
R/O HOLI CHOWK,
VILLAGE BAKNER, NARELA,
DELHI.
FIR No. : 20/2010
Police Station : Shahbad Dairy
Under Sections : U/S 342/366/376(2)(g) IPC
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FIR No. 20/10
PS Shahbad Dairy
Date of committal to session Court : 21/01/2010
Date on which judgment reserved : 03/01/2013
Date of which judgment announced : 22/01/2013
J U D G M E N T
1. Briefly stated the case of the prosecution as unfolded by the report u/s 173 Cr.P.C is as under : That on 25/01/2010 on receipt of DD No. 45A ASI Satbir Singh alongwith Constable Sunil reached at CBlock Gupta Colony, Prahlad Vihar, where on inquiry it was found that the rape was committed in DBlock, Gupta Colony and the girl has been taken to the MB Hospital by PCR. On which ASI Satbir Singh reached at the hospital and obtained the MLC of the victim girl (named withheld being a case u/s 376 IPC) on which the doctor had endorsed alleged history of sexual assault, last penetration today at 10.00 PM, no history of such contact previously (unmarried) and was declared fit for statement by the Doctor. On which the statement of the prosecutrix was 2 of 48 3 FIR No. 20/10 PS Shahbad Dairy recorded who stated about her taking away forcibly and of her wrongful detention in a room and of the committal of rape by accused Sanjeev Kumar @ Kala and Sunil and of the bolting of the room from outside by Meenu Kumar (Juvenile). On the statement of the prosecutrix offences u/s 342/366/376 (2)(g) IPC were found to have been committed. Rukka was prepared and the case was got registered through Constable Sunil. The sealed pullindas handed over by the doctor after the medical examination of the prosecutrix were taken into police possession. At the instance of the prosecutrix site plan was prepared and the statements of the witnesses were recorded. At the instance of prosecutrix accused Sanjeev Kumar @ Kala and Sunil were arrested and their disclosure statements were recorded and at their instance pointing out memos of the place of incident were prepared and their medical examinations were got conducted and the exhibits given by the doctor after their medical examination were taken into police possession and were deposited in the malkhana. On 29/01/2010 at the instance of the prosecutrix accused Meenu Kumar was arrested. At his instance the pointing out memo of the place of incident was prepared and his disclosure statement was recorded. Accused Meenu Kumar being a juvenile was produced before the Juvenile Welfare Officer and was sent to OHB by the order of the Court. The exhibits were sent to the FSL.
3 of 48 4 FIR No. 20/10 PS Shahbad Dairy Upon completion of necessary further investigation challan u/s 342/366/376(2)(g) IPC was prepared against accused Sanjeev Kumar @ Kala and Sunil and was sent to the court for trial.
2. Since the offences u/s 366 & 376(2)(g) IPC are exclusively triable by the Court of Session, therefore, after compliance of the provisions of Section 207 Cr.P.C, the case was committed to the Court of Session u/s 209 Cr.P.C.
3. Upon committal of the case to the Court of Session, after hearing on charge prima facie a case u/s 366/342/34 IPC & u/s 376 (2)(g) IPC was made out against accused Sanjeev Kumar @ Kala and Sunil. Charge was framed accordingly which was read over and explained to the accused to which they pleaded not guilty and claimed trial.
4. In Support of its case prosecution has produced and examined 14 witnesses. PW1 Smt. Rinki, PW2 Smt. Rani, PW3 SI Sudhir Rathi, PW4 The Prosecutrix, PW5 Dr. N.S. Khurana, Valmiki Hospital, Pooth Khurd, Delhi, PW6 Constable Sushil, PW7 Inspector Sanwar Mal, PW8 HC Ishwar 4 of 48 5 FIR No. 20/10 PS Shahbad Dairy Dutt, PW19 Ms. Poonam Sharma, Senior Scientific Officer, FSL Rohini, Delhi, PW10 HC Vijender, PW11 HC Jaiveer Singh, PW12 Constable Wazir Singh, PW13 SI Satbir, and PW14 Dr. Geetanjali Singh, Maharishi Valmiki Hospital, Pooth Khurd, Delhi.
5. In brief the witnessography of the prosecution witnesses is as under: PW1 Smt. Rinki is Bhabi of the prosecutrix, who is the post occurrence witness and proved her thumb impression at PointA on the recovery memo Ext. PW1/A vide which the exhibits given by the concerned doctor after the medical examination of the prosecutrix were seized and also proved the arrest memos of accused Sanjeev Kumar and Sunil Ex. PW1/B, Ex. PW1/C, their personal search memos Ex. PW1/D & Ex. PW1/E respectively thumb marked by her at Points 'A'.
PW2 Smt. Rani to whom the prosecutrix is related as daughter of her devar Madan who is the post occurrence witness and proved her thumb impression at PointB on the recovery memo Ex. PW1/A vide which the exhibits given by the concerned doctor after the medical examination of the prosecutrix were seized and also proved the arrest memos of accused Sanjeev 5 of 48 6 FIR No. 20/10 PS Shahbad Dairy Kumar and Sunil Ex. PW1/B, Ex. PW1/C, their personal search memos Ex. PW1/D & Ex. PW1/E respectively thumb marked by her at Points 'B'.
PW3 SI Sudhir Rathi is the Duty Officer, who proved the computerized copy of the FIR Ex. PW3/A signed by him at Point 'A' and proved the photocopy of DD No. 4A Ex. PW3/B. PW4 The Prosecutrix is the victim who deposed regarding the incident and proved her statement Ex. PW4/A made to the police and also proved the arrest memos of accused Sanjeev Kumar and Sunil Ex. PW1/B, Ex. PW1/C, their personal search memos Ex. PW1/D & Ex. PW1/E respectively signed by her at Points 'C'. She also deposed that accused Meenu was also arrested (who is facing trial before the Juvenile Justice Board). She also identified her clothes, salwar of blue colour, one lady shirt of blue colour and a pair of dirty shocks of blue colour Ex. P1 to Ex. P3 respectively. She also marked the copy of her Vth Class school leaving certificate Mark 'A' of Primary School, Dabali Baksar showing her date of birth as 03/12/1988.
PW5 Dr. N. S. Khurana, Valmiki Hospital, Pooth Khurd, Delhi, 6 of 48 7 FIR No. 20/10 PS Shahbad Dairy who proved the medical examination of the prosecutrix as was conducted by Dr. Ajay Keshari from 'A to A1' on Ext. PW5/A and signed by Dr. Ajay Keshari at Point 'A'.
PW6 Constable Sushil, who joined the investigation with IO ASI Satyabir (PW13) and deposed on the investigational aspects and proved the disclosure statements of accused Sanjeev and that of accused Sunil as Ex. PW6/A & Ex. PW6/B respectively, the pointing out memos of the place of incident by accused Sanjeev and accused Sunil as Ex. PW6/C & Ex. PW6/D respectively signed by him at Points 'A'.
PW7 Inspector Sanwar Mal who deposed that on 29/01/2010 he was posted as Juvenile Welfare Officer at PS Shahbad Dairy, a juvenile namely Meenu Kumar was produced before him. He was got medically examined at MB Hospital and was produced before Juvenile Justice Board, Kingsway Camp Delhi and by the order of concerned Court, the juvenile Meenu Kumar was sent to observation Home, for Boys at Delhi Gate.
PW8 HC Ishwar Dutt is the MHC(M), who proved the relevant 7 of 48 8 FIR No. 20/10 PS Shahbad Dairy entry of Register No. 19 Ex. PW8/A, copy of RC No. 10/21/10 Ex. PW8/B and the copy of the acknowledgment regarding receipt of case property by FSL Rohini Delhi Ex. PW8/C. PW9 Ms. Poonam Sharma, Senior Scientific Officer, FSL Rohini, Delhi, who proved the biological and serological reports Ex. PW9/A & Ex. PW9/B respectively signed by her at Points 'A'.
PW10 HC Vijender who deposed that on the intervening night of 2526/01/2010 he was posted on PCR Van L59 as Incharge in the Outer Zone. On receipt of a telephonic call that a girl has been raped at Gupta Colony at Shahbad Dairy, aged around 18 years he alongwith van went to the spot and removed the prosecutrix alongwith her bhabi and one more lady to MB Hospital, Pooth Khurd, Delhi.
PW11 HC Jaiveer Singh is the Duty Officer, who deposed that on 25/01/2010 at about 11:20 p.m. he received a wireless message that a girl has been raped at H. No. 3204, CBlock, Gupta Colony, Shahbad Dairy. He recorded DD No. 45A in this regard in the rozanamancha register and proved the attested copy of DD No. 45A as Ex. PW11/A. 8 of 48 9 FIR No. 20/10 PS Shahbad Dairy PW12 Ct. Wazir Singh who deposed that on 26/01/2010 on the directions of the IO he went to MB Hospital, Pooth Khurd, Delhi and collected the six sealed pullindas each and a sample seal of MB Hospital, Pooth Khurd, Delhi of the accused persons from the concerned doctor as well as the MLCs of the accused persons and handed over the same to the IO. The sealed pullindas and sample seal were taken into police possession vide seizure memos Ex. PW12/A and Ex. PW12/B respectively signed by him at Points 'A'. The accused persons were produced before the Court concerned who sent them to judicial custody.
PW13 SI Satbir is the Investigating Officer (IO) of the case, who deposed on the investigational aspects and besides proving the other memos also proved his endorsement Ex. PW13/A on the statement of prosecutrix Ex. PW4/A, signed by him at PointB and got the case registered. He proved the site plan Ex. PW13/B and collected the FSL reports Ex. PW9/A & Ex. PW9/B and proved the DD No. 24A dated 26/01/2010 regarding arrival at the Police Station alongwith the accused persons and the seizure memo Ext. PW13/D of the photocopy of the school transfer certificate of the prosecutrix given by her family members, showing the date of the birth of 9 of 48 10 FIR No. 20/10 PS Shahbad Dairy prosecutrix as 03/12/1988.
PW14 Dr. Geetanjali Singh, Maharishi Valmiki Hospital, Pooth Khurd, Delhi, who proved the gynaecological examination of the prosecutrix as was conducted by Dr. Palvi Singh, SR Gynae from Portion B to B1 on MLC Ex. PW5/A signed by Dr. Palvi Singh at Point 'A'. She also proved the medical examinations of patient/accused Sanjeev and that of patient/accused Sunil as was conducted by Dr. Sunita vide MLCs Ex. PW14/A & Ex. PW14/B signed by Dr. Sunita at Points 'A' opining that both the patients/accused Sanjeev and Sunil were capable of performing sexual intercourse.
The testimonies of the material prosecution witnesses shall be dealt with in detail during the course of the appreciation of the evidence.
6. Statements of accused Sanjeev Kumar @ Kala and Sunil were recorded u/s 313 Cr.P.C wherein they pleaded innocence and false implication. They initially opted to lead defence evidence but later on did not lead any defence evidence.
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7. Ld. Counsel for the accused submitted that in her statement Smt. Rinki stated that I heard the cries of my sister in law (Prosecutrix) coming from nearby home, then I called my mother in law Smt. Rani and we both went to that room and I called on 100 number but contrary to that Smt. Rani in her examinationinchief has stated that as sufficient time had lapsed when she (prosecutrix) had left I called my daughter in law (Rinki) then we went to that room, I saw victim/ prosecutrix was lying on the floor. Some one made call on 100 number. Ld. Counsel for the accused further submitted that both Rinki and Rani made contradictory statement on the point of calling each other and also on the reason for going to the place of occurrence. In her cross examination Rinki admitted that she had signed all documents at PS not at the place shown in the charge sheet. Ld. Counsel for the accused further submitted that in her cross examination prosecutrix admitted that there was no light on the way and there was power cut in the area on that day. If there was no light then how can she and her Tai and Bhabhi identified (in dark night) the accused persons. Ld. Counsel for the accused further submitted that prosecutrix has further stated that she identified the accused persons only through Tai and Bhabhi. It means that she could not identified personally the accused persons. Ld. Counsel for the accused further submitted that prosecutrix also stated that when Tai and Bhabhi reached 11 of 48 12 FIR No. 20/10 PS Shahbad Dairy there so many people gathered there but Rinki and Rani never made any statement regarding people. Ld. Counsel for the accused further submitted that Dr. N. S. Khurana stated that there was no any visible injury detected/found . How can it be possible in rape matter victim has no any injury mark on her entire body.
Ld. Counsel for the accused further submitted that HC Vijender stated that call on 100 number made on 11:00 p.m. to 12:00 a.m. but the case of the prosecution is that the call was made at about 10:00 p.m. on 25/01/2010. Ld. Counsel for the accused further submitted that IO Satbir Singh stated that accused persons were arrested from isolated place but all other witnesses stated that they were arrested from home. IO stated that one wine bottle also found from place of occurrence but he did not lift the finger print of the accused from there. Ld. Counsel for the accused further submitted that in forensic report human semen has detected, how prosecution corelate the same to the accused. Ld. Counsel for the accused further submitted that in nail clippings of victim no human blood found. How can it be possible, if she resisted during rape. Ld. Counsel for the accused further submitted that if victim was new in locality then how can she identified the accused in dark night. Ld. Counsel for the accused further submitted that if she (prosecutrix) was raped then how can her blood pressure was normal in 12 of 48 13 FIR No. 20/10 PS Shahbad Dairy medical examination.
Ld. Counsel for the accused further submitted that Doctor opined that alleged H/o sexual assault not rape. Sexual assault not similar to rape but as per medical jurisprudence not only penetration but penetration in vulva amounts to rape. Opinion of doctor is not confirming rape within the meaning of medical jurisprudence. Ld. Counsel for the accused further submitted that in medical examination doctor specifically mentioned that, no any visible injury found at the whole body of victim. In rape case it is not possible. Medical report is not confirming rape. Ld. Counsel for the accused further submitted that forensic report not confirming resistance on the part of victim. Ld. Counsel for the accused further submitted that victim was not subjected to rape by accused persons. Due to enmity they have been falsely implicated by Tai and Bhabhi of victim and prayed that the accused persons be acquitted on the charge levelled against them.
8. While the Ld. Addl. PP for the State, on the other hand, submitted that the testimonies of the prosecution witnesses are cogent and consistent and the contradictions and discrepancies as pointed out are minor and not the material one's and do not affect the credibility of the witnesses and the prosecution has proved its case beyond reasonable doubt.
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9. I have heard the Ld. Addl. PP for the State and Sh. B. N. Tiwari, Ld. Counsel for the accused and have also carefully perused the entire record.
10. The charge for the offences u/s 366/342/34 IPC & u/s 376(2)(g) IPC against the accused Sanjeev Kumar @ Kala and Sunil is that on 25/01/2010 at about 10:00 p.m. at Gupta Colony, Prahlad Vihar, they both alongwith one Meenu Kumar (Juvenile) in furtherance of their common intention kidnapped/abducted prosecutrix with intention that she may be forced or seduced to illicit intercourse or knowing it to be likely that she may be forced or seduced to illicit intercourse and that in furtherance of their common intention they both wrongfully confined the prosecutrix at H. No. D337, Gupta Colony, Prahlad Vihar and that they both alongwith one Meenu Kumar (Juvenile) committed rape on the person of prosecutrix one by one.
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 14 of 48 15 FIR No. 20/10 PS Shahbad Dairy justice.
AGE OF THE PROSECUTRIX
12. PW4 The Prosecutrix in her examinationinchief has deposed that she is fifth class passed from primary school Dabali Baksar and marked her school leaving certificate as mark 'A' showing her date of birth 03/12/1988.
PW13 SI Satbir, IO has proved the seizure memo Ext. PW13/D of the photocopy of the school transfer certificate of the prosecutrix showing the date of birth of prosecutrix as 03/12/1988.
There is nothing in the crossexamination of PW4 as well as that of PW13 SI Satbir so as to discredit the testimony of the said witnesses. Moreover, the fact regarding the date of birth of the prosecutrix has not been challenged either in the crossexamination of PW4 prosecutrix or in the crossexamination of PW1 Smt. Rinki or in the crossexamination of PW2 Smt. Rani or in the crossexamination of PW13 SI Satbir, IO.
15 of 48 16 FIR No. 20/10 PS Shahbad Dairy In the circumstances, it stands established on the record that the date of birth of PW4 Prosecutrix is 03/12/1988.
As the date of the alleged incident is 25/01/2010 and the date of the birth of PW4 Prosecutrix is 03/12/1988, on simple arithmetical calculation, the age of the prosecutrix comes to 21 years, 1 month and 22 days as on the date of alleged incident on 25/01/2010.
In view of above and in the circumstances, it stands established on record that PW4 Prosecutrix was aged 21 years, 1 month and 22 days as on the date of alleged incident on 25/01/2010 and thus a major. MEDICAL EVIDENCE
13. PW 5 Dr. N.S. Khurana, Valmiki Hospital, Pooth Khurd, Delhi, has deposed that prosecutrix was brought to the hospital on 2526/01/2010 at about 12:55 a.m. by HC Vijender with the alleged history of sexual assault and last penetration on the previous night (today) at 10:00 p.m. She was medically examined by Dr. Ajay Keshari and as per the record there was no visible fresh injuries and proved the medical examination as was conducted 16 of 48 17 FIR No. 20/10 PS Shahbad Dairy by Dr. Ajay Keshari from A to A1 on the MLC Ex. PW5/A signed by Dr. Ajay Keshari at PointA. PW14 Dr. Geetanjali Singh, Maharishi Balmiki Hospital, Pooth Khurd, Delhi, who deposed that on 26/01/2010 prosecutrix was gynaecological examined by Dr. Palvi Singh, SR Gynae and proved the gynaecological examination from Portion B to B1 on MLC Ext. PW5/A signed by Dr. Palvi Singh at PointA and further deposed that as per record the patient/prosecutrix had laceration on both sides of labia minora and hymen was found rupture.
Despite grant of opportunity PW14 Dr. Geetanjali Singh was not crossexamined on behalf of the accused.
In view of above and in the circumstances, it stands proved on the record that PW4 Prosecutrix was medically examined by Dr. Ajay Keshari from Portion 'A to A1' on the MLC Ext. PW5/A and she was gynaecologically examined by Dr. Palvi Singh from Portion 'B to B1' on MLC Ext. PW5/A. VIRILITY OF ACCUSED SANJEEV KUMAR AND SUNIL: 17 of 48 18 FIR No. 20/10 PS Shahbad Dairy
14. PW14 Dr. Geetanjali Singh has deposed that patient/accused Sanjeev Kumar vide MLC No. 175/10 and patient/accused Sunil vide MLC No. 176/10 were examined by Dr. Sunita who has opined that both the patients/accused Sanjeev Kumar and Sunil were capable of performing sexual intercourse and proved their MLCs Ext. PW14/A and Ext. PW14/B respectively signed by Dr. Sunita at PointsA. Despite grant of opportunity PW14 Dr. Geetanjali Singh was not crossexamined on behalf of the accused.
In the circumstances, it stands established on the record that both the accused Sanjeev Kumar and Sunil were capable of performing sexual intercourse.
BIOLOGICAL AND SEROLOGICAL EVIDENCE:
15. PW9 Ms. Poonam Sharma, Senior Scientific Officer, FSL Rohini, Delhi, who conducted the biological and serological analysis on the exhibits and proved the biological and serological reports as Ext. PW9/A & 18 of 48 19 FIR No. 20/10 PS Shahbad Dairy Ext. PW9/B respectively signed by her at PointsA. As per biological report Ext. PW9/A the description of articles contained in parcel and result of analysis reads as under: DESCRIPTION OF ARTICLES CONTAINED IN PARCEL Parcel '1' : One sealed cloth parcel sealed with the seal of "CASUALTY MB HOSPITAL POOTH KHURD DELHI39"
containing exhibits '1a', '1b' & '1c'.
Exhibit '1a' : One salwar having dirty stains. Exhibit '1b' : One lady's shirt.
Exhibit '1c' : One pair of dirty socks.
Parcel '2' : One sealed cloth parcel sealed with the seal of "CASUALTY MB HOSPITAL POOTH KHURD DELHI39"
containing exhibits '2a', '2b', '2c', '2d', '2e', '2f' & '2g' each kept in a separate envelope Exhibit '2a1' & '2a2' : Few nail clippings in two separate vials labelled as 'Rt. Hand long with scraping' and 'Lt. hand' respectively. Exhibit '2b' : Bunch of hair described as 'pubic hair'. Exhibit '2c' : Bunch of hair described as 'scalp hair'. Exhibit '2d1': Cotton wool swab on a wooden stick kept in a syringe 19 of 48 20 FIR No. 20/10 PS Shahbad Dairy described as 'Oral swab'.
Exhibit '2d2': Watery fluid in a tube described as 'mouthrinse'. Exhibit '2e1', '2e2, '2e3', '2e4' & '2e5': Five cotton wool swabs on wooden sticks each kept in a separate syringe marked as 'vaginal swab posterior', 'vaginal swab anterior', 'vulval swab Lt Side', 'vulval swab Rt side' & 'vaginal swab lateral' respectively.
Exhibit '2f' : Watery fluid kept in a vial described as 'vaginal washing'. Exhibit '2g' : Dark brown foul smelling liquid kept in three separate tubes described as 'blood sample'.
Parcel '3' : One sealed cloth parcel sealed with the seal of "CASUALTY MB HOSPITAL POOTH KHURD DELHI39"
containing exhibit '3'.
Exhibit '3' : Only dirty pants (jeans).
Parcel '4' : One sealed cloth parcel sealed with the seal of
"CASUALTY MB HOSPITAL POOTH KHURD DELHI39"
said to contain 'pubic hair' kept unexamined.
Parcel '5' : One sealed cloth parcel sealed with the seal of "CASUALTY MB HOSPITAL POOTH KHURD DELHI39"
containing exhibit '5'.
Exhibit '5' : Gauze cloth piece having brown stains described as 'blood sample'.
Parcel '6' : One sealed cloth parcel sealed with the seal of 20 of 48 21 FIR No. 20/10 PS Shahbad Dairy "CASUALTY MB HOSPITAL POOTH KHURD DELHI39"
containing exhibit '6' kept in a tube.
Exhibit '6' : Few nail clippings described as 'nail cuting'.
Parcel '7' : One sealed cloth parcel sealed with the seal of "CASUALTY MB HOSPITAL POOTH KHURD DELHI39"
containing exhibit '7' kept in a tube.
Exhibit '7' : Dark brown foul smelling liquid described as 'Bd sample'. Parcel '8' : One sealed cloth parcel sealed with the seal of "CASUALTY MB HOSPITAL POOTH KHURD DELHI39"
containing exhibit '8' kept in a vial.
Exhibit '8' : Cotton wool swab described as 'swab'.
Parcel '9' : One sealed cloth parcel sealed with the seal of "CASUALTY MB HOSPITAL POOTH KHURD DELHI39"
containing exhibit '9'.
Exhibit '9' : One dirty underwear.
Parcel '10' : One sealed cloth parcel sealed with the seal of
"CASUALTY MB HOSPITAL POOTH KHURD DELHI39"
containing exhibit '10'.
Exhibit '10' : Gauze cloth piece having dark brown stains described as
'blood gauze'.
Parcel '11' : One sealed cloth parcel sealed with the seal of
"CASUALTY MB HOSPITAL POOTH KHURD DELHI39"
said to contain 'pubic hair' kept unexamined.
21 of 48 22 FIR No. 20/10 PS Shahbad Dairy Parcel '12' : One sealed cloth parcel sealed with the seal of "CASUALTY MB HOSPITAL POOTH KHURD DELHI39"
containing exhibit '12' kept in a vial.
Exhibit '12' : One dirty cotton wool swab described as 'swab'.
Parcel '13' : One sealed cloth parcel sealed with the seal of "CASUALTY MB HOSPITAL POOTH KHURD DELHI39"
containing exhibit '13' kept in a tube.
Exhibit '13' : Dark brown foul smelling liquid described as 'Blood sample'. Parcel '14' : One sealed cloth parcel sealed with the seal of "CASUALTY MB HOSPITAL POOTH KHURD DELHI39"
containing exhibit '14' kept in a tube.
Exhibit '14' : Few nail clippings described as 'nail cutting'.
RESULT OF ANALYSIS
1. Blood was detected on exhibits '2g', '5','7','10' & '13'.
2. Blood could not be detected on exhibits '2a1','2a2', '2b', '2c', '2d1', '2d2', '2e1', '2e2', '2e3', '2e4', '2e5', '2f', '6', '8', '12' & '14'.
3. Human semen was detected on exhibits '1a', '2e1', '2e2', '2e3', '2e4', '2e5', '2f', '8' & '9'.
4. Semen could not be detected on exhibits '1b', '1c', '2d1', '2d2', '3' & '12'.
5. Skin could not be detected on exhibits '6', '8', '12' & '14'.
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6. Report of serological analysis in original is attached herewith.
The serological report Ext. PW9/B reads as under: Exhibits Species of origin ABO Grouping/ Remarks Blood Stains: '2g' Blood sample Sample blood putrefied, hence no opinion.
'5' Gauze cloth piece Human 'B' Group
'7' Blood sample Sample blood putrefied, hence no opinion.
'10' Gauze cloth piece Human 'O' Group
'13' Blood sample Sample blood putrefied, hence no opinion.
Semen Stains:
'1a' Salwar [Area I No reaction
[Area II No reaction
'2e1' Cotton wool swab No reaction
'2e2' Cotton wool swab No reaction
'2e3' Cotton wool swab No reaction
'2e4' Cotton wool swab No reaction
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PS Shahbad Dairy
'2e5' Cotton wool swab No reaction
'2f' Watery fluid No reaction
'8' Cotton wool swab No reaction
'9' Underwear No reaction
On careful perusal and analysis of the biological and serological evidence on record, it clearly shows that human semen was detected on exhibits '1a' (salwar of PW4 Prosecutrix), '2e1', '2e2', '2e3', '2e4', '2e5' (cotton wool swab of PW4 Prosecutrix), '2f' (watery fluid of PW4 Prosecutrix), '8' (cotton wool swab of accused Sunil) and '9' (underwear of accused Sunil).
On a conjoint reading of the medical evidence, the gynaecological examination from Portion B to B1 on MLC Ext. PW5/A of the prosecutrix together with the MLC of accused Sanjeev Kumar @ Kala Ext. PW14/A, MLC of accused Sunil Ext. PW14/B. In the light of the biological and serological evidence detailed hereinabove it clearly indicates the taking place of recent sexual intercourse activity.
24 of 48 25 FIR No. 20/10 PS Shahbad Dairy In the circumstances, it stands clearly established on the record that recent sexual intercourse activity has taken place in the instant case.
As per the biological report Ex. PW9/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 PW4 - prosecutrix which were seized vide seizure memo Ex. PW1/A, Parcel No. 3 to Parcel No. 8 belong to accused Sunil which were seized vide seizure memo Ex. PW12/B and Parcel No. 9 to Parcel No. 14 belong to accused Sanjeev Kumar @ Kala which were seized vide seizure memo Ex. PW12/A. As per the biological report Ex. PW9/A prosecution has discharged its initial burden of proving the presence of human semen on exhibit 8, cotton wool swab (of the accused Sunil seized vide seizure memo Ex. PW12/B) and on exhibit 9, underwear (of the accused Sanjeev Kumar @ Kala seized vide seizure memo Ex. PW12/A) as well as on exhibit 1a, salwar, exhibits 2e1, 2e2, 2e3, 2e4, 2e5, cotton wool swabs marked as vaginal 25 of 48 26 FIR No. 20/10 PS Shahbad Dairy swab posterior, vaginal swab anterior, vulval swab left side, vulval swab right side, vulval swab lateral respectively, exhibit 2f, watery fluid (of the prosecutrix seized vide seizure memo Ex. PW1/A). Accused were under an obligation to explain how and under what circumstances, the human semen came to be present on the said exhibits 1a, 2e1, 2e2, 2e3, 2e4, 2e5, 2f, 8 & 9.
The absence of such an explanation both in the section 313 Cr.P.C. statements of the accused and their omission to lead any evidence in this regard and their complete denial becomes an additional link in the prosecution case.
In the circumstances, there is no substance in the plea raised by the Ld. Counsel for accused that prosecution failed to corelate the human semen detected in the forensic report to the accused.
16. Now let the testimonies of PW4 - Prosecutrix, PW1 Smt. Rinki and PW2 Smt. Rani be perused and analysed.
PW4 The Prosecutrix in her examinationinchief has deposed that : "I had come to the house of my Tai in Delhi since last four 26 of 48 27 FIR No. 20/10 PS Shahbad Dairy months prior to the incident in the year 2010. I had come to Delhi for getting prepared a card for taking pension for the handicapped person, as I am a handicapped person. On 25.1.2010 at about 10.00 p.m when I was going for easing myself out of the house of my Tai a person who was residing in the neighbourhood of my Tai came from the back side and gagged my mouth with the help of cloth and had taken me in a room where he was rearing the pigs. In the meantime, a person named Menu has bolted the door from outside and Sanjeev and Sunil who were inside the room has committed rape upon me. Firstly Sanjeev committed rape upon me and then Sunil committed rape upon me. I raised alarm and on listening my noise my Bhabi Rinki and Tai Raj Rani has opened the latches from outside and came inside the room and rescued me. Some one has phoned to the police at No.100, police came at the spot and removed me to the hospital for medical examination".
She further deposed that police recorded her statement Ext. PW4/A signed by her at PointA and at her instance accused Sanjeev Kumar vide arrest memo Ext. PW1/A (be read as Ex. PW1/B) and accused Sunil Kumar vide arrest memo Ext. PW1/C were arrested and their personal searches were conducted vide personal search memos Ext. PW1/D & Ext. PW1/E respectively signed by her at PointsC. Accused Meenu was also arrested (he is facing trial before the Juvenile Justice Board). She further deposed that at the time of her medical examination her wearing clothes were taken into possession by the doctor and she identified her clothes a salwar of blue colour, one lady shirt of blue colour and a pair of dirty shocks as Ext.
27 of 48 28 FIR No. 20/10 PS Shahbad Dairy P1 to Ext. P3 respectively.
From the aforesaid narration of PW4 Prosecutrix it is clearly indicated that the prosecutrix on 25.01.2010 at about 10.00 PM when she was going for easing herself out of the house and at that time one person came from her back side and gagged her mouth with the help of cloth and took her in a room where he was rearing the pigs and the room was bolted by one person named Meenu from outside. Sanjeev and Sunil who were inside the room committed rape upon her. Firstly Sanjeev committed rape upon her and then Sunil committed rape upon her. When she raised alarm his bhabi Rinki (PW1) and Tai Rani (PW2) opened the laches from outside and came inside the room and rescued her.
PW4 Prosecutrix during her crossexamination negated the suggestions that she made the statement Ext. PW4/A at the instance and tutoring of the police officials or that accused Sanjeev and Sunil have been falsely implicated in this case or that because of enmity between the family of her Tai (PW2 Rani) and Bhabi (PW1 Rinki) and that of the family of accused Sanjeev and Sunil she has falsely implicated both the said accused in this case or that she was not taken in the room in the manner she deposed or 28 of 48 29 FIR No. 20/10 PS Shahbad Dairy that she is deposing falsely at the instance of the police.
The testimony of PW4 - Prosecutrix on perusal and analysis is found to be clear, natural, cogent, convincing, trustworthy and inspires confidence. Inspite of incisive crossexamination nothing material has been brought out on the record so as to impeach her creditworthiness. In the witness box she 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 them in the case.
The testimony of PW4 - Prosecutrix has also been corroborated by the medical evidence and the biological and serological evidence as discussed hereinbefore. The testimony of PW4 - Prosecutrix is also in consonance with her statement Ex. PW4/A made to the Police.
The testimony of PW4 Prosecutrix has been corroborated in material particulars by the testimonies of PW1 Smt. Rinki and PW2 Smt. Rani. They are also the post occurrence witnesses and are the witnesses to 29 of 48 30 FIR No. 20/10 PS Shahbad Dairy whom PW4 Prosecutrix disclosed the facts relating to the crime shortly after the incident being relevant u/s 6 and 8 of the Indian Evidence Act, 1872.
PW1 - Smt. Rinki in her examinationinchief has deposed that : "The prosecutrix (name withheld), is my sister in law (Nanad). On 25/01/2010, my sister in law was going to ease herself to Shauchalya (latrine) near to her house at about 10:00 p.m. I heard the cries of my sister in law coming from nearby house from a room. Thereafter I called my mother in law (Saas) Smt. Rani. Then I along with my Saas Smt. Rani went to that room. We saw that prosecutrix (name withheld) was lying on the floor of the room and both the accused present in the Court today (correctly identified) were also present in the room. Both the accused persons started quarreling with us and in that quarrel they succeeded to escape from the room. My sister in law prosecutrix (name withheld) at that time was weeping and on seeing me she again cried a lot. On asking by me she stated that both the accused persons had committed rape (Galat Kaam) with her. I made a call at number 100 and police arrived at the spot and made interrogation from us and then prosecutrix (name withheld) was removed to M. B. Hospital. After her medical examination, doctor has seized her undergarments and clothes. Thereafter on the next day my statement was recorded by the police in the PS. Police also visited our house and we have also told to the police the place where the incident took place.
I have signed the recovery memo of the sealed envelope and sample seal which was given by the concerned doctor after medical examination of my sister in law prosecutrix (name withheld). Same is Ex.
30 of 48 31 FIR No. 20/10 PS Shahbad Dairy PW1/A which was thumb marked by me at point A. Later on both the accused persons were arrested at the instance of my sister in law prosecutrix (name withheld). Accused Sanjeev Kumar and Sunil were arrested on 26/01/2010 and I thumb marked their arrest memos Ex. PW1/B and Ex. PW1/C at point A. I have also thumb marked their personal search memos Ex. PW1/D and Ex. PW1/E at point 'A'. Both the accused persons who are present in the Court today were residing in that room and were in the occupation of rearing pigs.
One person was also standing outside the room and I have seen him on the day of incident. He escaped from the spot on that day. On 29/01/2010 police had arrested that person at the instance of prosecutrix (name withheld) and I have signed the arrest and personal search memos. The said accused is not present in the court today (facing trial in juvenile court). I can identify the said accused, if shown to me."
During her crossexamination PW1 Smt. Rinki has negated the suggestion that both the accused have been wrongly implicated in this case as she was knowing them previously or that both the accused persons were identified by her at the instance of the police or that she is deposing falsely.
PW2 - Smt. Rani in her examinationinchief has deposed that : "The prosecutrix (name withheld), is the daughter of my Dewar namely Madan. On 25/01/2010, prosecutrix (name withheld) was going to ease herself near to her house at about 10:00 p.m. I heard the cries of prosecutrix (name withheld) coming from nearby house from a room at about 31 of 48 32 FIR No. 20/10 PS Shahbad Dairy 10:00 or 10:30 p.m and at that time I was sitting outside my house and waiting for her as sufficient time had lapsed when she had left the house. Thereafter I called my daughter in law Smt. Rinki. Then I along with my daughter in law Smt. Rinki went to that room. We saw that prosecutrix (name withheld) was lying on the floor of the room in naked condition and she was crying. Both the accused namely Kaley and Sanjay present in the court today (correctly identified) were also present in the room. Both the accused persons have uttered that they have raped the prosecutrix (name withheld) and do whatever we want to do. Both the accused had escaped from that room after a little while. As we were crying, someone had made a call at number 100 and police arrived at the spot and made interrogation from us and then prosecutrix (name withheld) was removed to M. B. Hospital. After her medical examination, doctor has seized her undergarments and clothes. Thereafter on the next day my statement was recorded by the police in the PS. Police also visited our house and we have also told to the police the place where the incident took place.
I have put my thumb mark on the recovery memo of the sealed envelope and sample seal which was given by the concerned doctor after medical examination of the prosecutrix (name withheld). Same is Ex. PW1/A which was thumb marked by me at point 'B'.
Later on both the accused persons were arrested at the instance of prosecutrix (name withheld) on the same day. Accused Sanjeev Kumar and Sunil were arrested on 26/01/2010 and I thumb marked their arrest memos Ex. PW1/B and Ex. PW1/C at point 'B'. I have also thumb marked their personal search memos Ex. PW1/D and Ex. PW1/E at point 'B'. Both the accused persons who are present in the court today were residing in that room near to our house.
One person was also standing outside the room and I have seen him on the day of incident. He escaped from the spot on that day. On 32 of 48 33 FIR No. 20/10 PS Shahbad Dairy 29/01/2010 police had arrested that person at the instance of prosecutrix (name withheld) and I have signed the arrest and personal search memos. The said accused is not present in the court today (facing trial in juvenile court). I can identify the said accused, if shown to me."
During her crossexamination PW2 Smt. Rani has negated the suggestion that both the accused have been wrongly implicated in this case as she was knowing them previously or that both the accused persons were identified by her at the instance of the police or that she is deposing falsely.
There is nothing in the crossexamination of PW1 Smt. Rinki and PW2 Smt. Rani so as to impeach their creditworthiness. They have withstood the rigors of crossexamination without being shaken. Their testimonies are natural, cogent, reliable and have a ring of truth. There is nothing in their statements to suggest that they had any animus against the accused to falsely implicate them in the case.
In the entire crossexamination of PW1 Smt. Rinki and PW2 Smt. Rani no suggestion was put to them by the accused persons that they (accused persons) have been falsely implicated by PW4 Prosecutrix because of the enmity between the family of her tai (PW2 Rani) and bhabi (PW1 33 of 48 34 FIR No. 20/10 PS Shahbad Dairy Rinki), which suggestion was put to PW4 Prosecutrix during her cross examination.
It appears that the Theory of enmity has been propounded by the accused persons in order to save their skin from the clutches of law.
While analysing the testimony of PW4 Prosecutrix, her bhabi PW1, her tai PW2 Smt. Rani as discussed hereinabove inspite of incisive crossexamination nothing has come out in the statements of PW4 Prosecutrix, PW1 Smt. Rinki and PW2 Smt. Rani which may throw even a slightest doubt on the prosecution version of the incident. Though the suggestion by the defence to PW4 Prosecutrix that because of enmity between the family of her Tai (PW2 Smt. Rani) and Bhabi (PW1 Rinki) and that of the family of Sanjeev and Sunil she has falsely implicated both the said accused in this case, was put which was negated by PW4 Prosecutrix. Moreover, no such suggestion of enmity between the family of PW1 Rinki and PW2 Smt. Rani and that of the family of accused Sanjeev and Sunil have been put either to PW1 Rinki or PW2 Smt. Rani during their cross examination nor the said theory of enmity between the families so 34 of 48 35 FIR No. 20/10 PS Shahbad Dairy propounded by the accused has at all being made probable much established by any cogent evidence.
17. Ld. Counsel for the accused raised the plea that in her cross examination prosecutrix admitted that there was no light on the way and there was power cut in the area on that day. If there was no light then how can she and her Tai and Bhabhi identified (in dark night) the accused persons and further submitted that if victim was new in locality then how can she identified the accused in dark night.
I have carefully perused and analysed the evidence on record. PW4 - Prosecutrix in her crossexamination has categorically deposed that : "I know these persons from the time when I had come to the house of my Tai as they were living in the neighbourhood. There was no toilet/ Latrine ( Pakhana) in the house of my Tai. It is correct that there was no light on the way when I was going to the latrine outside. There was light inside the room where I was taking by the accused persons and in which the pig were reared. I had seen the accused rearing the pigs. The room where the incident took place is nearby to the house of my Tai. The relations were normal between the family of my Tai and that of the family of the accused persons. There was power shading in the area on that day.
35 of 48 36 FIR No. 20/10 PS Shahbad Dairy Q When there was no light on the way vide which you were going to Latrine and in the room where the alleged incident took place then how did you identify the accused Sanjeev and Sunil?
Ans When I screamed and raised an alarm my Tai Raj Rani and Bhabi Rinki reached at the room and caught hold of the accused Sanjeev and Sunil when they tried to flee from that room and in the process my Bhabi Rinki was also pushed by them( accused Sanjeev and Sunil)."
"My mouth was gagged at the time when I was going for latrine by accused Sanjeev by coming from the back side. Q. How did you come to know that it was accused Sanjeev who had gagged your mouth by coming from back side when there was no light on the way? A. My mouth was gagged by Sanjeev by coming from back side but I could identify him as Sanjeev as I had seen him and he had not closed my eyes and my eyes were open."
Further both PW1 Rinki and PW2 Rani in their examination inchief have specifically deposed about the accused and regarding their presence and identification at the place of incident.
As regards the plea of Ld. Counsel for accused that how PW1 Rinki and PW2 Rani identified the accused in the dark night, no question on this aspect was put to the said witnesses during their crossexamination, in the circumstances, it does not lie in the mouths of accused persons to utter as to how the said witnesses identified the accused. For this accused persons have to blame themselves and none else. It is settled law that if there is no 36 of 48 37 FIR No. 20/10 PS Shahbad Dairy 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 2011 AD (DELHI) 276). However, at the cost of repetition as discussed hereinabove, PW4 - prosecutrix has specifically deposed in her crossexamination as reproduced hereinabove that there was light inside the room where she was taken by the accused persons and in which the pig were reared.
In the circumstances, there is no substance in the plea so raised by the Ld. Counsel for the accused persons.
18. Ld. Counsel for accused raised the plea that prosecutrix has stated that she identified the accused persons only through Tai and Bhabhi. It means that she could not identified personally the accused persons.
I have carefully perused and analysed the entire evidence on the record.
PW4 - Prosecutrix has not deposed anywhere in her entire testimony, the fact regarding which the plea has been raised. It appears that Ld. Counsel for the accused has misread the evidence. In the circumstances, 37 of 48 38 FIR No. 20/10 PS Shahbad Dairy there is no substance in the plea so raised by the Ld. Counsel for the accused.
19. Ld. Counsel for the accused raised the plea that Dr. N.S. Khurana stated that there was no any visible injury detected/found. How can it be possible in rape matter victim has no any injury mark on her entire body and that in nail clippings of victim no human blood found . How can it be possible , if she resisted during rape.
I have carefully perused and analysed the evidence on the record.
It is also to be noticed that PW4 - Prosecutrix is a handicapped person (Dwarf).
At the cost of repetition, PW4 - Prosecurtix in her examination inchief has deposed that : "I had come to the house of my Tai in Delhi since last four months prior to the incident in the year 2010. I had come to Delhi for getting prepared a card for taking pension for the handicapped person , as I am a handicapped person. On 25.1.2010 at about 10.00p.m when I was going for easing myself out of the house of my Tai a person who was residing in the neighbourhood of my Tai came from the back side and gagged my mouth with the help of cloth and had taken me in a room where he was rearing the pigs. In the meantime, a person named Menu has bolted the door from 38 of 48 39 FIR No. 20/10 PS Shahbad Dairy outside and Sanjeev and Sunil who were inside the room has committed rape upon me. Firstly Sanjeev committed rape upon me and then Sunil committed rape upon me. I raised alarm and on listening my noise my Bhabi Rinki and Tai Raj Rani has opened the latches from outside and came inside the room and rescued me."
During her crossexamination, PW4 - Prosecutrix has deposed that :
"During the committal of rape upon me by both the accused, when they left my mouth ungagged and at that moment I raised alarm. Vol. on which my tai and bhabhi reached at the door of that room."
"My mouth was gagged/pressed by accused Sanjeev with his own piece of cloth i.e chadar with which he was covering his body as it was the winter time and I was taken in such manner to the room where the incident took place."
From the aforesaid narration of PW4 - Prosecutrix, it is clearly indicated that she being a handicapped person (a dwarf) not a fully developed person having small hands, small legs and having small height was ravished by fully developed accused persons and her mouth gagged, in the circumstances, where can be any question of putting resistance by the victim and of causing nail scratches.
In the circumstances, there is no substance in the pleas so raised by the Ld. Counsel for the accused persons.
39 of 48 40 FIR No. 20/10 PS Shahbad Dairy
20. Ld. Counsel for accused raised the plea that if she (prosecutrix) was raped then how can her blood pressure was normal in medical examination.
I have carefully perused and analysed the evidence on record. In the MLC of PW4 - Prosecutrix, the blood pressure of PW4 - Prosecutrix has been shown as "BP110/80mm of Hg"
PW5 Dr. N. S. Khurana has proved the MLC of the prosecutrix (PW4) prepared by Dr. Ajay Keshavi from portion 'A' to 'A1' Ex. PW5/A signed by him at point 'A'. At the time of medical examination of PW4 -
Prosecutrix whatever blood pressure was measured, the same has been mentioned in the MLC Ex. PW5/A. Ld. Counsel for the accused failed to substantiate his plea so raised regarding the blood pressure recorded in the MLC Ex. PW5/A of the prosecutrix (PW4).
In the circumstances, there is no substance in the plea so raised by the Ld. Counsel for the accused persons.
21. Ld. Counsel for the accused raised the plea that Doctor opined that alleged H/o sexual assault not rape. Sexual assault not similar to rape but as per medical jurisprudence not only penetration but penetration in vulva amounts to rape. Opinion of doctor is not confirming rape within the 40 of 48 41 FIR No. 20/10 PS Shahbad Dairy meaning of medical jurisprudence.
I have carefully perused and analysed the evidence on the record and the text on medical jurisprudence.
It is well settled that rape, is crime and not a medical condition. Rape is a legal term and not a diagnosis to be made by the medical officer treating the victim.
It is to be noticed that the opinion expressed by Modi in Medical jurisprudence and Toxicology (Twenty First Edition) at page 369 which reads as : "Thus to constitute the offence of rape it is not necessary that there should be complete penetration of penis with emission of semen and rupture of hymen. Partial penetration of the penis within the labia majora or the vulva or pudenda with or without emission of semen or even an attempt at penetration is quite possible to commit legally the offence of rape without producing any injury to the genitals or leaving any seminal stains. In such a case the medical officer should mention the negative facts in his report, but should not give his opinion that no rape had been committed. Rape, is crime and not a medical condition. 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."
41 of 48 42 FIR No. 20/10 PS Shahbad Dairy In Parikh's Textbook of Medical jurisprudence and Toxicology, the following passage is found:
"Sexual intercourse: In law, this term is held to mean the slightest degree of penetration of the vulva by the penis with or without emission of semen. It is therefore quite possible to commit legally the offence of rape without producing any injury to the genitals or leaving any seminal stains."
In Encyclopedia of Crime and Justice (Vol. 4) at page 1356, it is stated:
".....even slight penetration is sufficient and emission is unnecessary."
On analysing the testimony of PW4 - Prosecutrix in the light of medical evidence, biological and serological evidence, gynaecological examination from portion B to B1 on MLC Ex. PW5/A of the prosecutrix, medical examination from portion A to A1 on the MLC Ex. PW5/A of the prosecutrix, MLC of accused Sanjeev Kumar Ex. PW14/A and MLC of accused Sunil Ex. PW14/B, as discussed hereinbefore, the act of performing of recent sexual intercourse activity by complete penetration of the penis with emission of semen or by partial penetration of the penis with emission of semen, within the labia majora or the vulva or pudenda stands 42 of 48 43 FIR No. 20/10 PS Shahbad Dairy proved.
In the circumstances, it stands clearly established on the record, of the performance of the act of sexual intercourse by both the accused Sanjeev Kumar @ Kala and Sunil with PW4 - Prosecutrix without her consent.
In the circumstances, there is absolutely no substance in the plea so raised by the Ld. Counsel for the accused.
22. Ld. Counsel for the accused submitted that in her statement Smt. Rinki stated that I heard the cries of my sister in law ( Prosecutrix) coming from nearby home, then I called my mother in law Smt. Rani and we both went to that room and I called on 100 no. but contradictory to Smt. Rani who in her examinationinchief has stated that due to lapse of sufficient time I called my daughter in law (Rinki) then we went to that room, I saw victim/ prosecutrix was laying in floor. Some one made call on 100 number. Ld. Counsel for the accused further submitted that both Rinki and Rani made contradictory statement on the point of calling each other and also on the reason for going to the place of occurrence. In her crossexamination Rinki admitted that she had signed all documents at PS not at the place shown in 43 of 48 44 FIR No. 20/10 PS Shahbad Dairy the chargesheet. Ld. Counsel for the accused further submitted that prosecutrix also stated that when Tai and Bhabhi reached there so many people gathered there but Rinki and Rani never made any statement regarding people. Ld. Counsel for the accused further submitted that HC Vijender stated that call on 100 number made on 11:00 p.m. to 12:00 a.m. but the case of the prosecution is that the call was made at about 10:00 p.m. on 25/01/2010. Ld. Counsel for the accused further submitted that IO Satbir Singh stated that accused persons were arrested from isolated place but all other witnesses stated that they were arrested from home IO stated that one wine bottle also found from place of occurrence but he did not lift the finger print of the accused from there.
I have carefully perused and analysed the evidence on record. The discrepancies so referred to are insignificant and do not materially affect the case of the prosecution, which is otherwise proved by clear cogent and convincing evidence.
There are bound to be some discrepancies in the narration of witnesses when they speak out details.
The Hon'ble Supreme Court of India in case Leela Ram Vs. 44 of 48 45 FIR No. 20/10 PS Shahbad Dairy State of Haryana (1999) 9 SCC 525 has observed that there are bound to be some discrepancies in the narration of certain witnesses when they speak out details. The corroboration of evidence with mathematical niceties cannot be expected in criminal cases. Minor embellishments, there may be, but variations by reasons therefore should not render the evidence of eye witnesses unbelievable.
It is a settled principle of law that every improvement or variation cannot be treated as an attempt to falsely implicate the accused by the witness. The approach of the Court has to be reasonable and practicable. (Reference Ashok Kumar Vs. State of Haryana [(2010) 12 SCC 350] and Shivlal and Another Vs. State of Chhattisgarh [(2011) 9 SCC 561]).
The Hon'ble Supreme Court in Para 21 of the case titled Kuria & Anr. Vs. State of Rajasthan 2012 XI AD (S.C.) 376 has held that : "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 45 of 48 46 FIR No. 20/10 PS Shahbad Dairy discrepancy should not be attached undue significance. The normal course of human conduct would be that while narrating a particular incident, there may occur minor discrepancies. Such discrepancies may even in Law render credential to the depositions. The improvements or variations must essentially relate to the material particulars of the prosecution case. The alleged improvements and variations must be shown with respect to material particulars of the case and the occurrence. Every such improvement, not directly related to the occurrence is not a ground to doubt the testimony of a witness. The credibility of a definite circumstance of the prosecution case cannot be weakened with reference to such minor or insignificant improvements. Reference in this regard can be made to the judgments of this Court in Kathi Bharat Vajsur and Another Vs. State of Gujrat [(2010) 5 SCC 724], Narayan Chetanram Chaudhary and Another Vs. State of Maharashtra [(2000) 8 SCC 457], D. P. Chadha Vs. Triyugi Narain Mishra and Others [(2001) 2 SCC 205] and Sukhchain Singh Vs. State of Haryana and others [(2002) 5 SCC 100].
In the circumstance, there is no substance in the plea so raised by the Ld. Counsel for the accused persons.
23. Ld. Counsel for accused referred to the cases and reported as Jagannath Benia Vs. State 2001 CRI.L.J. 282 (Orissa) and Man Singh & Anr. Vs. State of Madhya Pradesh 2007 CRI.L.J. 201 (Madhya Pradesh).
46 of 48 47 FIR No. 20/10 PS Shahbad Dairy I have carefully gone through the same. With due respect there is no dispute as to what has been held therein. 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".
24. In view of above and in the circumstances, prosecution has thus proved beyond shadows of all reasonable doubts that accused Sanjeev Kumar @ Kala, accused Sunil and accused Meenu Kumar (Juvenile) in furtherance of their common intention on 25/01/2010 at about 10:00 p.m. at Gupta Colony, Prahlad Vihar, kidnapped/abducted the prosecutrix, a handicapped person after gagging, when she was going for easing herself with the intention of forcing or seducing her to illicit intercourse and had taken her to room /House No. D337, Gupta Colony, Prahlad Vihar used for rearing pigs, where she was wrongfully 47 of 48 48 FIR No. 20/10 PS Shahbad Dairy confined and accused Sanjeev Kumar @ Kala and Sunil one after the other committed rape upon her who were inside the said house/room and the said house/room was bolted from outside by accused Meenu Kumar (Juvenile).
I accordingly, hold accused Sanjeev @ Kala and accused Sunil guilty for the offences punishable u/s 366/342/34 IPC and u/s 376 (2) (g) IPC and convict them thereunder.
25. In view of above discussion, I am of the considered opinion that as far as the involvement of the accused Sanjeev Kumar @ Kala and accused Sunil in the commission of the offences u/s 366/342/34 IPC and u/s 376 (2) (g) 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 Sanjeev Kumar @ Kala and Sunil beyond shadows of all reasonable doubts and there is no room for hypothesis, consistent with that of innocence of accused Sanjeev Kumar @ Kala and Sunil. I, therefore, hold accused Sanjeev Kumar @ Kala and Sunil guilty for the offences punishable u/s 366/342/34 IPC and u/s 376 (2) (g) IPC, and convict them thereunder.
Announced in the open Court (MAHESH CHANDER GUPTA) on 22nd Day of January, 2013 ASJ/Spl. FTC N/W & Outer District Rohini, Delhi 48 of 48