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Delhi District Court

State vs . (1) Manoj on 19 February, 2013

   IN THE COURT OF Dr. KAMINI LAU: ADDL. SESSIONS 
      JUDGE­II (NORTH­WEST): ROHINI COURTS: DELHI


Sessions Case No. 31/2012
Unique Case ID: 02404R0096322012

State                       Vs.    (1) Manoj
                                       S/o Ajay Kumar Yadav 
                                       R/o M­559, Mangolpuri, Delhi.
                                       (Convicted)

                                     (2)   Amit 
                                           S/o Jitender Gupta 
                                           R/o Kuwa Wali Gali 
                                           near Sharma Property,
                                           Budh Vihar­II, Delhi.
                                           (Convicted)


FIR No.                     :              23/2012
Police Station              :              Kanjhawla
Under Section               :              376 (2) (g)/506/363 Indian Penal  
                                           Code

Date of committal to Sessions Court  : 18.04.2012
Date on which orders were reserved  : 22.01.2013
Date on which judgment pronounced : 11.02.2013

JUDGMENT

Brief Facts:

(1) As per the allegations, on 6.2.2012 at about 10:00 PM in the Gali near Shilpa Gas Agency, the accused Manoj and Amit State Vs. Manoj, FIR No. 23/2012, PS Kanjhawla Page 1 kidnapped the prosecutrix 'M' (name of the girl is withheld case being under Section 376 (2) (g) IPC), a minor aged below 16 years of age, from the lawful guardianship of her parents with intention to force or seduce her to illicit intercourse and thereafter committed rape upon her and also criminally intimidate her to be killed in case if she raises an alarm.

Case of Prosecution in brief:

(2) The case of the prosecution in brief is that a complaint was lodged by the prosecutrix 'M' in Police Station Kanjhawla wherein she alleged that on 6.2.2012 she had gone to fetch milk when Manoj who was previously known to her met her. She further alleged that Manoj was in a black colour car and one boy whose name she came to know was Amit was also sitting with him on front seat. She has further alleged that Manoj asked her as to where was her sister Sakina on which she told Manoj that Sakina was at home. She alleged that Manoj came out of the car and at the same time Amit opened the back side window of the car and Manoj forcibly pulled her inside the car and when she raised alarm, Manoj threatened to kill her. Thereafter they took her to an isolated place where they committed rape upon her one by one on the back seat of the car after which they dropped her there itself. She also alleged that somehow she reached her house but did not tell anything to her family.

State Vs. Manoj, FIR No. 23/2012, PS Kanjhawla Page 2 However, in the morning she disclosed the incident to her mother and sister who brought her to the police station and the case was registered.

(3) On the basis of the above complaint, rukka was prepared and FIR was registered. During investigations, the accused were arrested and after completing the investigations, the charge sheet was filed in the court.

CHARGE:

(4) Charge under Section 363/366/506/376(2) (g) Indian Penal Code was settled against both Manoj and Amit to which they pleaded not guilty and claimed trial.

EVIDENCE:

(5) In order to discharge the onus upon it, the prosecution has examined as many as twenty two witnesses:

Public Witnesses:

(1) PW5 Shardha is the teacher at Sarvodya Kanya Vidhyalaya, Karala. She has produced the admission record of the prosecutrix 'M' showing that she was admitted in their school on 8th April, 2010 in Class 6th and her date of birth as per the school record State Vs. Manoj, FIR No. 23/2012, PS Kanjhawla Page 3 is 5th January, 1999. According to the witness the entry with regard to the date of birth, has been made on the basis of transfer certificate of the primary school namely Nigam Pratibha Balika Vidhyalaya, Karala. She has placed on record the copy of the admission register which is Ex.PW5/A showing the date of birth at point encircled X, copy of the pasting file is Ex.PW5/B and the certificate issued by the Principal regarding the date of birth is Ex.PW5/C. In her cross examination she has admitted that no date of birth certificate of child issued by the MCD was filed in school at the time of her admission and has voluntarily deposed that the entry in the school register had been made on the basis of SLC.

(2) PW9 Anuradha has deposed that on 07.02.2012 she received a call from SI Rajesh at 8:00 AM regarding a rape victim and on receipt of the said call, she reached at PS Kanjawala at 8:30 AM where she met the child 'M', aged about 13 years who appeared to be very scared. According to the witness, she spoke to the prosecutrix 'M' and counseled her after which her statement was recorded which is Ex.PW9/A and thereafter the prosecutrix was taken to the hospital. In her cross­examination, the witness has deposed that the elder sister of the prosecutrix was present with her.

She has denied that the prosecutrix had made her statement Ex.PW9/A on her tutoring and voluntarily deposed that she had State Vs. Manoj, FIR No. 23/2012, PS Kanjhawla Page 4 made the same voluntarily of her own.

(3) PW10 is the Prosecutrix 'M' who has been examined in vernacular (Hindi). According to the witness on 6.2.2012 at 6:30 PM when she was purchasing milk, the accused Manoj who was sitting in the court (correctly identified) came to her and asked as to where was her sister on which she told him that her sister was at home and if he wanted to speak to her he should go to her house. (on 06.02.2012 shyam 6­30 baje Jab Main Doodh Le Rahi Thi. To Manoj Jo adalat Main betha hua hai (accused correctly identified) mere paas aaya aur bola - Teri Behan Kahan Hain? Maini usse kaha wo ghar par hai aur agar baat karni hai to ghar par chale jaoo). According to the prosecutrix when she was still purchasing milk, the accused Manoj told her that he wanted to talk about something to her on which she told him what he wanted to tell her but Manoj told her to sit in the car and thereafter one boy Amit (accused correctly identified) came there in a black colour car and he opened the back door of the car and Manoj forcibly pushed her and threatened not to raise any alarm or else he would kill her and thereafter they took her at a isolated place and asked her that they would not leave her till she would not give them. (Jab Main Doodh Kharid Rahi thi, Manoj phir Bole ­ Tujhse Baat Karni Hai. Maini usese Bola ­ Baat Bolo. To Manoj Bola Gari Mai Betho. Tab Ek Ladka Amit(correctly identified the accused Amit present in the State Vs. Manoj, FIR No. 23/2012, PS Kanjhawla Page 5 court) Kali Gari Main Aaya. Amit Ne Pichala Gate Khola aur Manoj Ne Mujhe Dhakka Diya aur Kehne Laga Chillayegi To Maar Dunga. Phir Dono Mujhe Sunsaan Jagah Par Le Gaye Aur Kaha Jab Tak Nahi Degi to Jane Nahi Denge). The prosecutrix has further deposed that first it was Manoj who did jabardasti with in the car itself and went away and thereafter Amit took her in the car to various isolated places and he also did jabardasti with her and thereafter dropped her near Mangolpuri Ganda Nala from where she reached her house and informed her sister who took her to the police station. (Pahle Manoj Ne Gari Main Hi Jabardasti Kari Phir Chala Gaya. Phir Amit Gari Sunsan Jagahaon Par Ghumane Laga. Usne Bhi Jabardasti Kari Phir Mangol Puri Nale Ke Paas Chor Diya. Wahan Se Main Akeli Ghar Aayeee. Ghar Par Maini Yeh Baat Batai aur meri behan mujhe police station Main Le Gai".) (4) On a court question as to what Manoj and Amit did, the witness has replied saying Ganda Kaam Kiya Tha. On further court question as to which class she was studying (Kaun Si class Main Padti Ho), the witness has replied that she studying in VII calss (VIIth class Main Padti Huan)'. On further asking by the court as to what she mean by 'Ganda Kaam', the witness has replied saying Ganda Kaam Se Matlab rape karna hain'.

State Vs. Manoj, FIR No. 23/2012, PS Kanjhawla Page 6 (5) The witness has further deposed that thereafter when she went to police station Ms. Anuradha met her who asked her about the incident after which her statement was recorded by the police. (Uske Baad Jab Main Thane Gayee To Wahan Mujhe Anuradha Didi Mili Thi aur unhone mujhse saree baat poochi thi. Uske baad thane main mera bayan huan tha). She has identified her statement Ex.PW9/A and has identified her signatures at point A. She has further deposed that after recording her statement, she was taken to the hospital where her medical examination was got conducted after which they return to the police station and also took the police to the spot where the accused pushed her inside the car. (Bayan Ke Baad Main hospital Gai Jahan mera medical hua tha. Medical Ke Baad Hum Thane Main Aa Gaye The. Maini police wale uncle ko woh jagah dikhayee thi jahan se dhakka dekar gadi mein bithya tha). Witness has identified the site plan prepared at her instance which is Ex.PW10/A and her signatures at point A which she identifies. According to the prosecutrix on next day she came to the court and told the entire incident to Ld. MM. (Aagle Din Main Court Main Aayee aur maini MM Sahib Ko Sari Baat Batayee Thi). The prosecutrix has identified her statement Ex.PW12/B bearing her signatures at point A. She has further deposed that she also identified the black coloured car whose number she does not State Vs. Manoj, FIR No. 23/2012, PS Kanjhawla Page 7 remember. (Maine Jo Kali Rang Ki Gari Jiska Number Yaad Nahi Hai , Pehchani Thi). Witness has identified her signatures on the pointing out memo which is Ex.PW10/B bearing her signatures at point A. According to the witness the doctor had seized her clothes during the medical examination which she has identified in the court i.e. salwar Ex. P­1, kurta Ex. P­2, Brazier Ex. P­3 and jacket Ex.P­4. (6) In her cross­examination the prosecutrix has deposed that she knew Manoj prior to the incident and has voluntarily explained that he was the friend of her sister­in­aw and they also participated in his birthday and he used to come to her house occasionally. (Main Manoj Ko Pehle Se Hi Janti Thi. She voluntarily explained "Wo Mere Jija Ka Dost Hai aur hum Uske Janamdin par gaye the. Manoj Kabhi Kabhi hamare ghar main aa jata tha). She has further deposed that when she went to fetch milk, the accused was present there. (Jab Main Doodh Lene Gayee Thi to Manoj Wahi Khara Tha". She voluntarily explained that Manoj was aware that she used to come for milk daily. (Usey Pata Tha Ki Main Roj Doodh Lene Jaati Thi). She again said sometimes she herself and sometimes her sister used to come to fetch milk. (Kabhi Main aur kabhi kabhi meri behan doodh lene jaati thi). She has voluntarily explained that Manoj knew that they used to come for milk daily in the evening. (Usko Pata Tha Ki Hum Shyam Ko Doodh Lene Jaate State Vs. Manoj, FIR No. 23/2012, PS Kanjhawla Page 8 Hain). According to the witness when she reached home after the incident she did not disclosed about it to her parents and has voluntarily explained that she had disclosed to her mother and sisters but she did not disclose to her father as he does not talk such things and hence she did not tell him. (Jab Main Waqyat Ke Baad Ghar Gayee Tab maini Papa Ko Waqyat Ke Baare Main Nahi Bataya Tha. Voluntarily explained that Maini Apni Mummy aur Behan Ko Bataya Tha kyonki Papa Is Tarah Ki Baat Nahi Karte Hain isliye Maine unko Nahi Bataya Tha). The witness has deposed that her younger sister Akina had made 100 number call and informed the poilce). (100 Number Ki Call Meri Choti Behan Aakina Ne Kari Thi aur usi Ne police ko bataya tha). The witness has denied that suggestion that her father had refused to make the complainant and has voluntarily explained that nobody had refused the same. (Yeh Kehna Galat Hai Ki Mere Papa Ne Karwai Karne Ke Liye Mana Kiya. Voluntarily explained that Kisi Ne Mana Nahi Kiya Tha). She admits that she had disclosed the entire incident to her sister in the night itself and has voluntarily explained that she had disclosed to her sister in the morning since in the night she was having pain in her stomach and hence she slept. (Yeh Sahi Hai Ki Maini Apni Behan Ko Sari Baat Raat Ko Nahi Batayee Thi Voluntarily explained that Subah Batayee Thi Kyonki Raat Ko Mere Pet Main Dard Ho Raha State Vs. Manoj, FIR No. 23/2012, PS Kanjhawla Page 9 Tha Aur Main So Gayee Thi). She admits that her mother had taken her and her yelder sister to the police station. (Yeh Sahi Hai Ki Mummy Mujhe Aur Meri Badi Behan Sakeena Ko Thana Main Chod Gayee Thi). The witness has denied that no car has come there. (Yeh Kehna Galat Hai Ki Koyee Gadi Wahan Nahi Aayee). According to the witness when she was pushed in the car she had raised an alarm and has voluntarily examined that at that time there only Gai­Walas who were inside. (Jab Mujhe Gari Main Dhakka Mara Tha To Maine Shor Machaya Tha Voluntarily explained that Tab Wahan sirf Gaye Wale Hi Khare The Jo Ander The). She has denied the suggestion that nobody had taken her anywhere and the entire incident has been created by her at the instance of her family. (Yeh Kehna Galat Hai Ki Mujhe Koi Kahin Nahi Lekar Gaya aur Sara Wakya Maine apni family ke kehna par banaya tha). She has denied that 10­15 days prior to this incident, her father caught her while talking with 2­3 boys on which he was annoyed. (Yeh Kehna Galat Hai Ki Is Wakya Ke 10­15 din pehle mere Papa Ne Mujhe 2­3 Ladkon Ke Se Baat Karte Dekh Liya Tha jis se woh Gussa ho gaye the). Witness has voluntarily explained she was not talking to any body. (hum kisi ladke se baat nahi harte the). She has denied that no such incident had happened and she has falsely implicated Manoj and Amit at the instance of her jija. (Yeh Kehna State Vs. Manoj, FIR No. 23/2012, PS Kanjhawla Page 10 Galat Hai ki aisa koi incident nahi hua tha aur Manoj aur Amit Ko Maine Apne Jija Ke Kehne Par Phasaya Hai).

(7) PW15 Surender Mohan has deposed that he is residing at the address mentioned in his testimony along with his family and he is into private business and running a shop of mobile shops. According to him the black Accent Car bearing No. 2698 is in his name and he drive the same. He as deposed that his nephew Amit, S/o Jitender Gupta used to take his vehicle and it was either on 05th or 06th of February, 2012 that Amit Gupta had taken his black color Accent car bearing No. DL­2CW­2698 and after two days, he (witness) had received a call from Police Station Kanjhawala that the vehicle had been used for commission of an offence of kidnapping of a girl. According to the witness, he was directed to produce the vehicle in the police station on which he asked his brother Anil Gupta to produce the said car at police station Kanjhawala and he came to know that his vehicle had been seized by the police on account of the incident. The witness has deposed that later on, on 26.02.2012 he got his vehicle released on superdari which is Ex.P5. This witness has not been cross­examined on behalf of the accused persons despite opportunity.

(8) PW18 Sakina is the sister of prosecutrix. She has deposed that on 06.02.2012 at about 7.00­8.00 PM her sister 'M' went to purchase milk but she did not return and they searched for her in the State Vs. Manoj, FIR No. 23/2012, PS Kanjhawla Page 11 area for about one or two hours and thereafter made a call to the police on 100 number stating that two­three boys had taken her sister since they telephoned her (sister) and she informed them that two­ three boys had taken her and they tied her eyes with a cloth and she does not know as to where they were taking her. According to her, thereafter they again telephoned her (prosecutrix) but she did not lift her mobile and thereafter she (witness) along with her relatives went in search of 'M'. Witness has further deposed that her younger sister namely Akeena made complaint to the police and police also telephoned 'M' on her mobile and 'M' lifted the phone after two three hours and told the police that she is returning back. According to her, 'M' met near the nala at Budh Vihar and at that time they asked 'M' about the incident but at that time she told them that nothing wrong was done with her. Witness has further deposed that subsequently she was brought to the house and they again made inquiries form 'M' and at that time she told them that accused Manoj and Amit had taken her and raped her. She further told that these persons namely Manoj and Amit threatened her not to disclose this fact to the police or relatives that is why she did not disclosed these facts to the police at the time of her recovery.

(9) Witness has further deposed that on the next day i.e. on 07.02.2012 at about 7.00AM they took 'M' to the police station Kanjhawala and police officials made inquiries from her in the ladies State Vs. Manoj, FIR No. 23/2012, PS Kanjhawla Page 12 room and one Madam also reached there and she also made inquiries from 'M' in a room and also recorded her statement. According to her, thereafter that Madam left the police station and thereafter one another Madam took 'M' to Sanjay Gandhi Memorial Hospital, Mangol Puri at about 10.00AM where the medical examination of 'M' was got conducted. Witness has further deposed that Doctor had taken the clothes of 'M' in the hospital and thereafter they left the hospital at about 2.30PM and reached police station and thereafter the case was registered. Witness has further deposed that thereafter he alongwith 'M' and police officials went to Mangol Puri in search of accused Manoj and at one place police prepared site plan at the instance of 'M' and thereafter they reached to the house of Manoj, (the address of the house of Manoj was given by his brother in law who was the friend of Manoj and he used to visit the house of his brother in law) at M­559 Mangol Puri where father of accused Manoj met them and accused Manoj was also present there. Witness has further deposed that Police made inquiries from accused Manoj and her sister 'M' also identified the accused Manoj and thereafter Manoj was arrested and he was brought at the police station. According to her, Police also made inquiries from Manoj about his associates and accused Manoj disclosed the name of accused Amit who was residing at Budh Vihar and then she alongwith her sister 'M', accused Manoj and police officials went to the house of Amit at Budh Vihar State Vs. Manoj, FIR No. 23/2012, PS Kanjhawla Page 13 and the house was found locked. Thereafter they returned to the Police Station and police recorded her station and thereafter they returned to their house. Witness has further deposed that on 08.02.2012 her sister 'M' was brought to Rohini Court and she also accompanied her and her sister 'M' was produced before the court and her statement was recorded by Ld. MM. Police recorded her statement. Witness has correctly identified Manoj and Amit in the court in the court.

(10) In her cross­examination by Ld. Defence counsels, witness has deposed that she knew accused Manoj prior to the incident for about one month. She admits that Manoj came to their house occasionally and has explained that he normally remained there for about 10 to 15 minutes but he never stayed in their house in the late hours. According to her, she did not knew Amit prior to the incident nor she ever made any call to Amit. Witness has further deposed that her younger sister had made a call to the police on 100 number and her name is Akeena who is aged about 19 years and 'M' is younger than Akeena for about 5 to 7 years. According to her when they made inquiries from 'M', she told them that somebody called her and one vehicle came near her and she stopped there and Manoj pushed her in the said vehicle and they took her. According to her, the accused Amit was arrested after 5 - 6 days. Witness has denied the suggestion that nothing happened with 'M' by the accused State Vs. Manoj, FIR No. 23/2012, PS Kanjhawla Page 14 Manoj and Amit or that 'M' was tutored in the night hours and subsequently produced before the police on the next day. Witness has admitted that she is not the eye witness to the incident happened with 'M'.

(11) PW19 Zarina is the mother of prosecutrix. She has deposed that she is residing at the address mentioned in her testimony in Delhi along with her family comprising of four daughters and one son. Her eldest child is a son and 'M' (prosecutrix) is her third child. She did not recollect the date but states that her daughter 'M' had gone to bring milk at around 7.00 PM but did not return thereafter. They searched for her in the area and also waited for her about one to two hours and thereafter made a call to the police on 100 number. It was the police who traced her daughter on the same day. When she returned home, she informed them that two boys had raped her one by one in a car but she could not inform them about the area. According to the witness on coming to know of this, she took her daughter 'M' to the police station.

(12) Ld. Addl. PP for State has put leading questions to the witness with permission of the court wherein the witness has admitted that the incident is of 06.02.2012 and voluntarily explained that she had forgotten the date earlier. She does not recollect if her daughter 'M' was carrying a mobile phone at the time of the incident. She also does not recollect if they had dialed her number and were State Vs. Manoj, FIR No. 23/2012, PS Kanjhawla Page 15 able to speak to her and she informed them that she would be returning home shortly and soon thereafter she returned home with two policeman and she voluntarily admitted that she returned home with the police officials. She denied that she made her statement to the police vide Ex. PW19/PX1 wherein she had mentioned the above facts to the police/IO on 07.02.2012.

(13) In her cross­examination the witness has deposed that her daughter had told her the names of the accused who had committed rape on her but she does not recollect the said names. She has deposed that she did not tell to the police officials the names of any of the boys and voluntarily explained that she did not remain at the police station for long and returned to her house. She further deposed that her marriage took place in Delhi but the year she does not recollect and voluntarily deposed that it must have taken place around 30 years ago. She has deposed that her eldest child / son was born after about three years of her marriage and he is around 25 years of age at present and her youngest child / daughter is aged around 10­12 years and the prosecutrix 'M' is aged around 15 years. She has stated that 'M' used to go to school but she does not recollect what was her date of birth mentioned in the school record. According to the witness she did not go to the school for the admission of 'M' and has voluntarily explained that her elder daughter had gone for her (prosecutrix) admission and she is the one who must have given State Vs. Manoj, FIR No. 23/2012, PS Kanjhawla Page 16 the date of birth of 'M' in the school. She has further deposed that 'M' used to go for fetching milk only sometimes and has voluntarily explained that at times her other daughters used to go and sometimes 'M' used to go. She has admitted that 'M' has a mobile phone but she does not know its number. She has also admitted 'M' had taken her mobile phone with her when she had gone to fetch milk and voluntarily deposed that, that is how they could speak to her on the mobile. She denied that her daughter 'M' frequently and voluntarily went out alone and were suspicious when she did not return and that is why they were making telephone calls to her. She admits that when her daughter was brought back by police, they (police) returned back but she denied that they told them that they did not want any action and voluntarily deposed that her daughter told police what had happened with her but they went away without taking any action and that is why they had taken her daughter to police station in the morning.

(14) PW20 Rehman is the father of prosecutrix. He has deposed that he is residing at House of Jain, in the gali in front of Shilpa Gas Agency, Utsav Vihar, Karala, Delhi, since last 20 years and he is a labourer and working in a pipe factory. According to him his daughter 'M' had gone missing about 10 to 12 months back in this year (exact date and month he does not remember) on which his children telephoned him and he returned home from his job and State Vs. Manoj, FIR No. 23/2012, PS Kanjhawla Page 17 thereafter his children telephoned to 'M' who told them that she was lifted by two persons. The witness has deposed that thereafter his children informed the police at 100 number after which police along with his relatives got recovered his daughter 'M' from the Nala of Budh Vihar. According to the witness, his daughter 'M' had informed that some wrong thing had happened with her. He has deposed that due to night hours, the police left his daughter and went away and on the next day in the morning, his daughter 'M' and her mother went to police station and police recorded her statement. (15) Leading questions were put by Ld. Addl. PP for the State with permission of the Court wherein the witness has admitted that the date of incident is 06.02.2012. Witness has admitted that he is illiterate that is why he could not tell the exact date of incident. (16) In his cross examination by Ld. Defence counsel, witness has deposed that he used to go to his work at about 9.00 AM and returned at 9.00 PM. He has stated that he was not present at his house when 'M' went to purchase the milk. He has stated that his daughter 'M' was having mobile phone on those days. Witness has denied the suggestion that he did not receive any telephone call from his house with regard to the missing of his daughter 'M'. Witness has further deposed that it was 9.00 PM when he received the phone from his house regarding missing of 'M' and his daughter Sakeena telephoned the police of 100 number and his statement was recorded State Vs. Manoj, FIR No. 23/2012, PS Kanjhawla Page 18 at his house. According to him he did not know the accused Manoj and Amit prior to the incident and his statement was not read over to him by the police.

Medical Evidence:

(17) PW6 Dr. Rajesh Dalal has deposed that on 07.02.2012, Manoj was produced before him by SI Rajesh for his medical examination and he examined Manoj vide MLC Ex.PX­5 and he gave his opinion at point bracketed X showing that there was nothing to suggest that the person is not capable of performing sexual intercourse. This witness was not cross­examined on behalf of the accused persons despite opportunity.

(18) PW11 Dr. Rashmi Verma has deposed that on 07.02.2012 he was posted at the Sanjay Gandhi Hospital and on that day the prosecutrix 'M' was brought at the Casualty of the Hospital by SI Rajesh Kumar with alleged history of sexual assault and she was medically examined at the Casualty by Dr. P.C. Prabhakar, who prepared the MLC Ex.PW11/A and referred 'M' to Gynae Department for further examination and management. According to the witness, she medically examined the above­said 'M' with alleged history of sexual assault on 06.02.2012 at 10:00 PM and has mentioned the alleged history in the MLC and she examined 'M' and State Vs. Manoj, FIR No. 23/2012, PS Kanjhawla Page 19 gave her observation at portion X to X1 of Ex.PW11/A. The witness has deposed that on the local examination, she did not find any external injuries however on per­vagina examination, she found the hymen ruptured. According to the witness after her medical examination, she has taken the public hair, nail clippings, vulva swabs, vagina swabs and vagina smears and the clothings i.e. salwar, kurta, brazier and jacket and the blood sample of the prosecutrix and handed over the same to the police in sealed condition with the seal of hospital along with the sample seal. This witness was also not cross­examined on behalf of the accused persons despite opportunity.

(19) PW12 Dr. P.C. Prabhakar has deposed that on 07.02.2012 at about 10­20 a.m. SI Rajesh Kumar brought the prosecutrix 'M' to the hospital with alleged history of sexual assault on 06.02.2012 at about 10 p.m. According to the witness he medically examined above said 'M' and prepared her MLC No. 1381 which is Ex. PW­11/A. He has deposed that he did not find any fresh external injuries over the exposed part of the body of 'M' and referred her to Gyane department for further examination and management. This witness was also not cross­examined on behalf of the accused persons despite opportunity.

(20) PW13 Dr. Brijesh Singh has deposed that on 09.02.2012 the accused Amit was brought at the hospital by Ct. Sudhir for medical examination as he was involved in a case of State Vs. Manoj, FIR No. 23/2012, PS Kanjhawla Page 20 sexual assault. According to the witness, he medically examined Amit at about 12­35 a.m. and prepared his MLC No. 2305 which is Ex. PX6 and observed that there was nothing to suggest that Amit cannot perform the act of sexual intercourse. The witness has deposed that he took blood sample and undergarments of Amit and handed over the same to the police in sealed condition with the seal of hospital. This witness was also not cross­examined on behalf of the accused persons despite opportunity.

Forensic Evidence:

(21) PW7 Dharamveer Kapoor has deposed that on 13.02.2011 he along with Sh. V. Shankaranaryanan, inspected the Hundai Accent Car bearing No. DL2C­W2698, Engine No. G4EB2A39181 Chasis No. MALCG 41 GR 2MO 52793*K which was brought to the FSL, Rohini and after inspection, Sh. V. Shankaranaryana gave his report Ex.PW­7/A. In his cross examination, the witness has admitted that the above said report does not bears his signatures. He has denied that he did not participate in the inspection of the vehicle and that it is for this reason that the above said report does not bear his signatures.

(22) PW8 V. Sankarabarayanan has deposed that on 13.02.2011 he inspected the Hyundai Accent Car bearing No. DL2CW 2698 Engine No. G. 4EB2A 39181 Chasis No. MALCG 14 State Vs. Manoj, FIR No. 23/2012, PS Kanjhawla Page 21 GR 2MO 52793*K and gave his report as Ex.PW7/A. In his cross examination, he has denied that he has given the report on the asking of the Investigating Officer.

(23) PW14 Shashi Bala Pahuja has deposed that on 10.07.2012 seven sealed parcels were received in DNA Unit from Biology Division in the present case which were assigned to her for examination and the seals were intact as per the forwarding letter. She has deposed that she opened the parcels and examined the exhibits and gave his detailed report Ex.PW14/A. According to the witness, the exhibits 1a, 1b, 1c, 1d, 1e, 1f, 1g, 1h, 1i1, 1i2, 1j, 1k, 1l, 1m, 1n1, 1n2, 1n3, 1n4, 1o, 1p, 3, 7, 8 and 10 were subjected to DNA isolation. She further deposed that the DNA was isolated from the source of exhibits 1b, 1d, 1e, 1h, 1i1, 1i2, 1n1, 1o, 1p, 3 and 10. She has further deposed that DNA could not be isolated from the source of exhibits 1a, 1c, 1f, 1g, 1j, 1k, 1l, 1m, 1n2, 1n3, 1n4, 7 and 8. According to the witness the DNA Fingerprinting profile was generated from the source of exhibits 1b, 1e, 1h, 1i1, 1i2, 1n1, 1o, 1p, 3 and 10, however, DNA Fingerprinting profile could not be generated from the source of exhibit 1d, due to non­amplification. The witness has deposed that the STR analysis was used for each of the sample and the data was analyzed by using Genemapper ID­X Software. The witness has deposed that the alleles from the source of Exhibit '3' (i.e. blood sample of accused Manoj) are accounted in State Vs. Manoj, FIR No. 23/2012, PS Kanjhawla Page 22 the profile generated on the source of the exhibit 1b (i.e. right valval swab), Ex.1c (i.e. left vaginal swab), Ex.1h (i.e. high vaginal swab), Ex.1il and Ex.1i2 (i.e. vaginal smear slides), Ex.1L (i.e. Salwar) and Ex.10 (i.e. Baniyan). According to the witness the DNA Fingerprinting profile generated from the source of exhibit 1b (i.e. right valval swab), Ex.1c (i.e. left vaginal swab), Ex.1h (i.e. high vaginal swab), Ex.1il and Ex.1i2 (i.e. vaginal smear slides), Ex.1L (i.e. Salwar) and Ex.10 (i.e. Baniyan) and DNA Fingerprinting profile generated from the source of exhibit '3' (i.e. blood sample of accused Manoj) is sufficient to conclude that the Exhibits '3' (i.e. blood sample of accused Manoj) is responsible for the biological stains present on the source of Exhibits 1b, 1e, 1h, 1i1, 1i2, 1n1 and 10. This witness was also not cross­examined on behalf of the accused persons despite opportunity.

Police / Official Witnesses:

(24) PW1 HC Rajbir Singh has been examined way of affidavit which is Ex. PW1/1. He was posted as MHC (M) and has proved the various entires in Register No. 19 and 21. He has proved the entries in Register No. 19 bearing No. 1595/12 copy of which is Ex.PW1/A, serial No. 1598/12 copy of which is Ex. PW1/B, serial No. 1601/12 copy of which is Ex. PW1/C and serial No. 1616/12 State Vs. Manoj, FIR No. 23/2012, PS Kanjhawla Page 23 copy of which is Ex. PW1/D. He has also relied upon entry in Register No. 21 vide RC No. 4/21/12 copy of which is Ex. PW1/E and RC No. 5/21/12 copy of which is Ex. PW1/F. He further relied upon on the acknowledgment issued by FSL, copy of which is Ex.PW1/G. This witness was also not cross­examined on behalf of the accused persons despite opportunity.

(25) PW2 ASI Dharambir Singh has tendered his examination in chief by way of affidavit which Ex.PW2/1 bearing his signatures at points A and B. He relied upon documents i.e. FIR No. 23/12, copy of which is Ex.PW2/A bearing his signature at point A and endorsement on rukka which is Ex.PW2/B. This witness was also not cross­examined on behalf of the accused persons despite opportunity granted.

(26) PW3 SI Ashwani Kumar has tendered his examination in chief by way of affidavit which is Ex.PW3/1 bearing his signatures at points A and B. According to him on the intervening night of 6/7.2.2012 he was working as Duty Officer and at about 6:45 AM, the complainant along with her mother and sister who were interrogated by SI Rajesh Kumar. This witness was also not cross­ examined on behalf of the accused persons despite opportunity. (27) PW4 Ct. Sunil Kumar has tendered his examination in chief by way of affidavit which is Ex.PW4/1 bearing his signatures State Vs. Manoj, FIR No. 23/2012, PS Kanjhawla Page 24 at points A and B. He has proved the registration of DD No. 82B copy of which is Ex.PW4/A. This witness was also not cross­ examined on behalf of the accused persons despite opportunity. (28) PW16 Ct. Kanta has deposed that on 07.02.2012, on the directions of SI Rajesh, she had gone to Sanjay Gandhi Hospital, Mangolpuri along with the prosecutrix 'M' where her medical examination was got conducted and thereafter the doctor handed over the exhibits to IO/SI Rajesh Kumar in sealed pullandas, which were seized by the IO vide seizure memo Ex.PW16/A. (29) In her cross­examination, she has deposed that they started from the police station at 9:15 AM and it took about 30­45 minutes to reach at the hospital by official vehicle but she did not make any separate departure entry when she left the police station.

She has denied that she did not accompany the IO to the hospital and it is for this reason that the seizure memo does not bears her signatures.

(30) PW 17 Ct. Raj Kumar has deposed that on 07.02.2012 he was posted at Police Station Kanjhawala and on that day at about 4.00 PM Duty Officer ASI Dharambir handed over him copy of FIR and original rukka to him for handing over the same to the investigating officer and he reached near the spot and handed over the same to the investigating officer. The witness has not been cross examined by the Ld. Defence Counsel despite opportunity in this State Vs. Manoj, FIR No. 23/2012, PS Kanjhawla Page 25 regard and his testimony has gone uncontroverted.

(31) PW21 SI Naresh Kumar has deposed that on 08.02.2012 he was handed over the investigations of the present case by the SHO. According to him he interrogated Manoj with regard to the details of the co­accused Amit and Manoj informed him that Amit was known to him but he could get him apprehended. The witness has deposed that he prepared a police raiding party at about 9.00 PM comprising of himself, Ct. Sudhir and one home guard and they all along with the accused Manoj went to Mangolpuri in the official vehicle driven by the official driver. According to the witness, there Manoj took them to the public park at I­Block and pointed out towards three boys, who were smoking cigarettes out of whom one of them was Amit and Manoj pointed out the boy holding a cigarette in his hand as Amit after which they apprehended Amit and he was interrogated after which he was arrested vide memo Ex.PW21/A, his personal search was conducted vide memo Ex.PW21/B and after detailed interrogation his disclosure statement was recorded vide Ex.PW21/C. The witness has further deposed that on further inquiries Amit disclosed that the vehicle in question belonged to his chacha / son of his chacha which vehicle was parked at the road near I­Block. According to the witness he thereafter accompanied accused Amit to the I­Block road where Amit pointed out towards a black color Accent car bearing No. DL­2CW­2698 State Vs. Manoj, FIR No. 23/2012, PS Kanjhawla Page 26 which was seized vide memo Ex.PW21/D. The witness has deposed that Amit was medically examined at SGM hospital and the doctor handed over to him exhibits of Amit in the sealed pullanda which he seized vide memo Ex.PW21/E. The witness has deposed that he also prepared the pointing out memo of the said vehicle by the prosecutrix which is Ex. PW10/B. He has identified both the accused in the court. He also identified the car i.e. black Accent bearing No. DL­2CW­2698, which is Ex.P5.

(32) In his cross­examination he has deposed that they have started from the police station at about 9.00 PM and reached at the park near I­Block at about 10.00 PM. He has deposed there was sufficient light in the park, which was coming from light installed in the park when accused Amit was pointed out by accused Manoj. According to him, the distance between the police team and the accused Amit was 60­70 feet. The witness has deposed that Amit did not try to run away from the spot and has voluntarily explained that they did not show to him that they were coming to apprehend him and he was taken by surprise and therefore there was no opportunity for him to run away. He has denied that the accused Manoj had made no disclosure statement regarding having any knowledge of Amit or that the accused Amit was called to the police station and falsely implicated in the present case only because his vehicle has been used by other persons in the commission of the offence. He has further State Vs. Manoj, FIR No. 23/2012, PS Kanjhawla Page 27 denied that Amit had not made any disclosure statement to the police and that both accused Manoj and Amit have been falsely implicated in the present case.

(33) PW22 SI Rajesh Kumar has deposed that on 06.02.2012 at about 11.00 PM, he received DD No.82 B that three boys had lifted the sister of the informer from Utsav Vihar near Devi Sangram Ashram in front of Shilpa Gas Agency Police Chowki. According to the witness on receiving the information, he along with Ct. Jagdish and driver Ct. Rajvir Singh left the police station in the official vehicle and met the complainant and other family members who informed him that their daughter 'M' had gone to purchase milk at about 7.00 PM and did not return thereafter. The witness has deposed that the father of prosecutrix 'M' namely Rehman told him that his elder daughter saw three boys talking with 'M' few days back that is why due to suspicion they made a call to the PCR regarding the three boys however he could not tell the details of those three boys. According to the witness, he along with the family members of 'M' tried to contact 'M' on her mobile phone and after some time family members contacted to 'M' on mobile and talked with 'M' and she told them that she was coming. The witness has deposed that thereafter the beat staff Ct. Sudhir along with Sakeena brought prosecutrix 'M' from Budh Vihar while talking 'M' on her mobile. The witness has deposed that the father of the prosecutrix told that State Vs. Manoj, FIR No. 23/2012, PS Kanjhawla Page 28 his daughter is safe and no mis­happening had been done with her that is why they left the prosecutrix 'M' there and returned to police station.

(34) The witness has further deposed that on the next day at about 7.40 AM, he was called by the Duty Officer in the DO room where complainant 'M', her mother Zarina Begum and her elder sister Sakeena were present there. According to him the duty Officer told him that the prosecutrix 'M' and her relatives told him about the commission of galat kaam with her on 06.02.2012 in the night hours. The witness has deposed that he made enquiries from the prosecutrix 'M' and called the NGO Ms. Anuradha who reached there and counselled the prosecutrix and thereafter her statement vide Ex.PW9/A was recorded by him in the presence of NGO Mrs. Anuradha bearing his signatures at point C. The witness has deposed that thereafter the Subsequently 'M' was taken to SGM Hospital along with Lady Ct. Kanta and her elder sister Sakeena for medical examination and after medical examination, doctor handed over MLC and sealed envelop containing the exhibits with sample seal which were taken into possession vide memo Ex.PW16/A. According to the witness they returned back to the police station and he prepared rukka Ex.PW22/A and handed over the same to the Duty Officer for registration of FIR and thereafter he along with Ct. Sudhir, prosecutrix 'M' and her sister Sakeena went to the place of State Vs. Manoj, FIR No. 23/2012, PS Kanjhawla Page 29 occurrence from where she was lifted. He prepared the site plan Ex.PW10/A at the instance of prosecutrix 'M' and thereafter at the instance of prosecutrix the accused Manoj was arrested vide memo Ex.PW22/B, his personal search was conducted vide memo Ex.PW22/C and his disclosure statement was recorded vide Ex.PW22/D. According to the witness, on the basis of the disclosure statement of accused Manoj, they went to the house of co­accused Amit at Budh Vihar but the house was found locked and when they were returning, in the mid­way at Shilpa Gas Agency chowki, he recorded statement of 'M' and her sister Shakeela and they were discharged after which the accused Manoj was taken to SGM Hospital and his medical examination was got conducted and his exhibits were collected in three sealed parcels with sample seal and the same were taken into possession vide seizure memo Ex.PW22/E. According to the witness he got recorded statement of prosecutrix U/s 164 Cr. PC. He has deposed that on 08.02.2012 in the evening, the file was handed over to SI Naresh as per direction of the senior officers.

(35) According to the witness, on 10.02.2012 he received back the file for further investigation. He has deposed that on 13.02.2012 the vehicle Hyundai Accent number DL 2C W 2698 was taken from the MHC (M) vide RC No. 4/21/12 and vehicle was produced before the FSL Rohini where the vehicle was inspected by State Vs. Manoj, FIR No. 23/2012, PS Kanjhawla Page 30 the FSL team and thereafter they handed over one baniyan type garment found inside the car which was seized by him vide memo Ex.PW22/F. The witness has deposed that on 14.02.2012, he got deposited the case property through Ct. Sudhir after obtaining the same from MHC (M) to FSL for analysis. He has deposed that the accused Manoj pointed out the place of occurrence from where they recovered the prosecutrix vide pointing out memo Ex.PW22/H. He has identified the accused Manoj and Amit in the court. He also identified the Salwar Ex.P­1, Kurta Ex.P­2 and Jacket Ex.P­4. He also identified the baniyan, which got recovered by the FSL authority from the car bearing no. DL 2 CW 2698 as Ex.P­6 and said car as Ex.P­5.

(36) In his cross­examination this witness has deposed that when he met the prosecutrix for the first, she was at her house and there was nobody else from the police station. He admits that when he questioned the prosecutrix she did not tell anything. He further admits that when he met the prosecutrix she did not appear to be under any pressure or fear and she also did not give him the name of any accused on that day. He has deposed that on the next day morning, the prosecutrix had come to the police station along with her mother and sister Sakeena. He admits that the allegations against the accused were made by the prosecutrix in the presence of her family members and after counselling of the NGO. He has further State Vs. Manoj, FIR No. 23/2012, PS Kanjhawla Page 31 admitted that when accused Manoj was apprehended on the pointing out of the prosecutrix, he did not try to resist. He has denied that the accused Manoj did not make any disclosure statement and that the same was recorded by him of his own. He has further denied that the accused Manoj has been falsely implicated by them in connivance with the family of the prosecutrix. He did not get the ossification test of the prosecutrix conducted. According to him, the date of birth of the prosecutrix was ascertained on the basis of school record and admitted that no date of birth certificate was given to them by the family of the prosecutrix. He further denied that wrong date of birth of the prosecutrix has been given by him only to falsely implicate the accused persons in the present case.

STATEMENT OF ACCUSED & DEFENCE EVIDENCE :

(37) After completion of prosecution evidence the statement of both the accused were recorded under Section 313 Cr.P.C.

wherein all incriminating evidence were put to them which they have denied.

(38) The accused Manoj has stated that he was known to the prosecutrix and her family previously including her sister, brother and parents. He has further stated that he frequently used to meet her family including her sister Sakina even outside the house and her family had no objection to the same to the prosecutrix and her elder State Vs. Manoj, FIR No. 23/2012, PS Kanjhawla Page 32 sister Sakina going out with him. According to him on the date of the incident the prosecutrix made complaint against him, he did not kidnap her and had rather along with his friends helped her family to search for her along with her elder sister Sakina and one police officer from Police Station Begumpur. The accused has further stated that other public persons are also a witness to this incident when he along with his friends and Sakina along with one police official had gone to search for the prosecutrix after they had come to his house. The accused Manoj states that he is innocent and has been falsely implicated at the instance of some other girl with malafide intention.

(39) According to accused Amit he is innocent and has been falsely implicated. He has stated that the police officials first called his mother to the police station for making some inquiries and later they called him also and falsely implicated in this case. He has further stated that he has nothing to do with the alleged incident. (40) The accused Manoj has examined three witnesses in his defence. DW1 Rajesh Kumar has deposed that he know accused Manoj from childhood. According to him on 6.2.2012 at about 7 to 7:30 PM in his presence the accused Manoj was taken away by one Sukhbir from Police Station Begumpur and two girls namely Renu and Sakina. In his cross examination this witness has deposed that he knew Renu and Sakina previously as he had seen them with Manoj. State Vs. Manoj, FIR No. 23/2012, PS Kanjhawla Page 33 He has denied the suggestion that he has deposed falsely. (41) DW2 Ram Pyarey has deposed that on th intervening night of 6/7.2.2011 at about 2:30 AM (midnight) he woke up for toilet when he heard noise in the gali on which he came out of the house and saw that two police officials and one girl were present in the neighbouring house bearing No. M­559, Mangolpuri, belonging to Ajay Yadav. According to him, in the morning he came to know that police had taken away Manoj. In his cross examination the witness has deposed that he is known to Manoj from childhood being the resident of the same area. He deposed that he did not ask the police officials as to why they came there nor he made any complaint to any senior officials of police or to any court regarding lifting of Manoj by the police. He admits that he cannot comment on the correctness or falsity of allegation against Manoj because is not aware of the same.

(42) DW3 HC Sukhbir has deposed that he is posted at Police Station Begumpur for three years and he know the accused Manoj as he is the secret informer of the police and had helped him in a robbery case. According to the witness he is aware of the facts of the present case. He has deposed that on the relevant day (date he does not recollect), he had received a call from one Sakina who was previously known to him as she used to frequently come to the police station along with Manoj and Sakina told him that her sister was State Vs. Manoj, FIR No. 23/2012, PS Kanjhawla Page 34 missing on which he told them that he was on leave but he would inform the SHO. According to the witness he then called up the SHO and informed him about the facts conveyed to him by Sakina regarding her missing sister on which the SHO told him to take somebody from the police station and search for the girl on which he took Ct. Ram Avtar from the police station and he along with Renu and Sakina went to search her sister. According to the witness, Renu expressed her suspicion on Manoj on which he called up Manoj and asked him where he was on which he told him that he was at Sanjay Gandhi Hospital on which they went to Sanjay Gandhi Hospital from where they picked up Manoj. \The witness has deposed that Sakina still expressed her suspicion on Manoj and said that Manoj had passed on her sister to some other boy by the name of Amit and he himself in order to create an alibi / defence has come to Sanjay Gandhi Hospital. According to the witness, Manoj remained with them thereafter till the girl was got recovered from Budh Vihar ganda nala from where the girl was recovered by officers of Police Station Kanjhawla. The witness has deposed that when they picked up Manoj from Sanjay Gandhi Hospital it was already dark / night time.

(43) In his cross examination by Ld. Addl. PP for the State, the witness has deposed that accused had only helped in one case and State Vs. Manoj, FIR No. 23/2012, PS Kanjhawla Page 35 he cannot tell if he was otherwise providing assistance to the police in other cases as well but he cannot tell if he was a regular police informer of the area. According to him he only know that the accused was residing along with a lady namely Renu. The witness has deposed that he had informed the SHO the details of the information received by him and also the suspicion expressed by Sakina over Manoj. According to him he had informed the SHO orally and not in writing and that the SHO had orally asked him to go and assist in search of the accused and he did not make any rawangi in the police station while leaving for search of the girl and has voluntarily added that he was on leave. He has denied the suggestion that he was only helping out the complainant Sakina in his personal capacity. He deposed that he knew Sakina because previously Renu and Manoj had also come to the police station in some personal dispute between them and Sakina used to come with Renu. He has admitted that Renu was in dispute with Manoj and that is why their disputes used to come to the police station. The witness has denied that on account of the accused Manoj being his personal informer he has tired to save him.

FINDINGS:

(44) I have heard the arguments advanced before me by the Ld. Addl. PP for the State and the Ld. Defence Counsel. I have also State Vs. Manoj, FIR No. 23/2012, PS Kanjhawla Page 36 considered the testimonies of various witnesses examined by the prosecution and memorandum of arguments filed on behalf of the accused. My findings are as under:

Identity of the Accused:

(45) Both the accused have been specifically named in the FIR. They have also been named by the prosecutrix in her statement to the Investigating Officer, to the Ld. Magistrate under Section 164 Cr.PC and also in her testimony before the court. The prosecutrix has also correctly identified both the accused Manoj and Amit in the court. In this background, I hold that the identity of both Manoj and Amit stands established.

Age of the Prosecutrix:

(46) The case of the prosecution is that at the time of the incident, the prosecutrix was hardly aged around 12 to 13 years and in this regard the prosecution has placed its reliance on the school record of the proseutrix. Ms. Shardha (PW5) has produced the admission record of prosecutrix 'M' showing that she was admitted in the school on 8th April, 2010 in class 6th copy of which is Ex.PW5/A. This witness has also proved that as per their record, the date of birth of prosecutrix 'M' is 5th January, 1999 which entry was made on the basis of transfer certificate of the primary school. She has proved the State Vs. Manoj, FIR No. 23/2012, PS Kanjhawla Page 37 copy of the pasting file as Ex.PW5/B and the certificate issued by the Principal regarding the date of birth as Ex.PW5/C. In the cross examination, this witness has explained that the entry in the school register has been made on the basis of SLC. Here I may observe that the accused has not been able to controvert the above and there is no reason to disbelieve the documentary record reflecting that on the date of incident i.e. 6.2.2012 the prosecutrix was 12 years 01 month old (had not even arrived the age of consent).

Medical Evidence:

(47) Dr. Rajesh (PW6) has proved the MLC of the accused Manoj wherein he has observed that there was nothing to suggest that the accused Manoj was incapable of performing sexual intercourse.

Dr. Brijesh Singh (PW13) has proved the MLC of accused Amit showing that there was nothing to suggest that the accused Amit was incapable of performing sexual intercourse.

(48) Dr. Rashmi Verma (PW11) and Dr. P.C. Prabhakar (PW12) have proved the MLC of prosecutrix Ex.PW11/A. Dr. Rashmi has specifically proved that on local examination she did not find any external injury but on per­vagina examination, the hymen was found ruptured and after her medical examination she had taken the public hair, nail clippings, vulva swabs, vagina swabs and vagina smears and the clothings i.e. salwar, kurta, brazier and jacket and the State Vs. Manoj, FIR No. 23/2012, PS Kanjhawla Page 38 blood sample of the prosecutrix and handed over the same to the police in sealed condition with the seal of hospital along with the sample seal. Dr. Rashmi has not been cross­examined on behalf of the accused either on the aspect of collection of samples and exhibits which she handed over to the police in sealed condition or on the aspect of medical examination of the prosecutrix and hence her entire testimony has gone uncontroverted.

(49) Dr. P. C. Prabhakar (PW12) has confirmed that SI Rajesh has brought the prosecutrix to the hospital on 7.2.2012 at about 10­20 a.m. with alleged history of sexual assault on 06.02.2012 at about 10 p.m. (i.e. within 24 hours of the incident). As per the MLC, the prosecutrix herself had given the history to Dr. Rashmi that she had been sexually assaulted by two men at around 10 PM on 6.2.2012 out of which one was known to her and the police had found her and that brought her home at midnight. The MLC also shows that the prosecutrix had also told the doctor that she had not taken a bath and also not changed her clothes which she was wearing at the time of incident. The medical examination record of the prosecutrix which examination was got conducted within 12 hours of the incident, is compatible to the prosecution case and the hymen tear confirms the rape having being committed on the minor prosecutrix. Further, the doctor having proved the collection of the exhibits / samples and the clothes which the prosecutrix was wearing at the State Vs. Manoj, FIR No. 23/2012, PS Kanjhawla Page 39 time of her medical examination which clothes according to the prosecutrix she had not changed after the incident and the FSL report conclusively connecting the accused Manoj with the offence the prosecution case stands established against him. Forensic Evidence:

(50) Sh. Dharamveer Kapoor (PW7) and V. Shankarnarainan (PW8) have proved having inspected the Hundai Accent Car bearing no.DL2C­W2698, Engine No. G.4EB2A39181, Chassis No. MALCG 41 GR 2MO 52793*K, and lifted the exhibits which were sent for DNA Fingerprinting examination. Ms. Shashi Bala Pahuja (PW14) has proved the DNA Fingerprinting report vide Ex.PW14/A. She has proved that DNA Fingerprinting profile generated from the source Ex.1b (i.e. right valval swab), Ex.1c (i.e. left vaginal swab), Ex.1h (i.e. high vaginal swab), Ex.1il and Ex.1i2 (i.e. vaginal smear slides), Ex.1L (i.e. Salwar) and Ex.10 (i.e. Baniyan), were sufficient to conclude that the blood sample of Manoj i.e. Ex.3 was responsible for the biological stains present on the above exhibits of the prosecutrix.

(51) This being so, the DNA Fingerprinting report conclusively connects the accused Manoj to the offence since the biological stains of Manoj were found to be present on the exhibits of the prosecutrix and therefore, it is this which conclusively and finally State Vs. Manoj, FIR No. 23/2012, PS Kanjhawla Page 40 clinches the issue in so far as the accused Manoj is concerned and connects him with the offence committed on the prosecutrix. Vehicle used in the Commission of Crime recovered ­ established:

(52) The case of the prosecution is that the prosecutrix had been kidnapped in the black coloured Hyundai car. In this regard they have relied upon the testimony of Sunder Mohan (PW15) who is the registered owner of the said car bearing No. DL2C­W2698, Engine No. G.4EB2A39181, Chassis No. MALCG 41 GR 2MO 52793*K which according to the prosecution had been used for the commission of the offence. Sunder Mohan (PW15) has proved that his nephew Amit Gupta (accused before this court) who is the son of his brother Jitender had taken this car either on 5th or 6th February, 2012 and later on he came to know when he received a call from Police Station Kanjhawala that the said car had been used for kidnapping of a girl on which he took this vehicle to Police Station Kanjhawala which car is Ex.P5. Further, the witnesses Dharamveer Kapoor (PW7) and V. Shankarnarainan (PW8) proved having inspected the above vehicle on 13.2.2012 and lifted the exhibits from the same.

(53) Here I may observe that when the above incriminating evidence was put to the accused Amit in his statement under Section 313 Cr.PC, he did not explain how the vehicle belonging to his uncle State Vs. Manoj, FIR No. 23/2012, PS Kanjhawla Page 41 which he had taken on the date of incident, was used in the commission of offence of rape in the same. There is no reason why Surender Mohan (PW15) the real uncle / Chacha of the accused Amit would tell a lie in the court and say something which would incriminate and implicate his own nephew. In fact Sunder Mohan has proved that it was Amit who had taken the vehicle on the date of incident. If this be so then it is a fact within the special knowledge of the Amit as to where he took this vehicle and how it was used in the offence. It is writ large that Amit is not coming out with the details and hence under the given circumstances there is no reason to disbelieve the version put forward by the prosecutrix that she was kidnapped in this car driven by Amit in which she was first raped by the accused Manoj and thereafter Manoj went away and Amit kept on driving her at various places and then raped her and dropped her at ganda nala Mangolpuri.

(54) The prosecutrix has in her testimony specified that she was picked up in the black coloured vehicle driven by Amit and Surender Mohan has confirmed that on the evening of the incident Amit had taken his vehicle i.e. black coloured Accent Car Ex.P­5 which he has identified in the Court. I therefore hold that the prosecution has been able to established that the prosecutrix had been kidnapped by the accused in this black coloured Hyundai Accent Car bearing No. DL­2CW­2698 in which she was first raped by the State Vs. Manoj, FIR No. 23/2012, PS Kanjhawla Page 42 accused Manoj and then by the accused Amit.

Allegations against the accused:

(55) The case of the prosecution is that the prosecutrix a young girl of about 12­13 years had been kidnapped on 6.2.2012 at about 6:30 PM by the accused of which Manoj was previously known to the family of the prosecutrix and thereafter gang raped in black coloured Hyundai Accent Car firstly by the accused Manoj and then by the accused Amit. In the meanwhile her family was alerted on account of her absence as she did not return for a long time on which they started to search for her in the area and after lodged a missing report. The sister of the prosecutrix namely Sakina joined the said search along with Renu and had her suspicion on accused Manoj. She throughout kept on telling the police that it was Manoj who had taken her sister and had passed her on to some other person.

The prosecutrix 'M' was thereafter recovered on the same day with the help of the local police at about 12 midnight. It is admitted by the family of the prosecutrix that when she went to fetch milk she was carrying her mobile. Sakina has also admitted that she had made a call to the prosecutrix on her mobile phone and it was the prosecutrix who informed her that she had been kidnapped by two boys. She also admits that it was the prosecutrix who had ultimately informed her on the mobile phone that she had been dropped at some State Vs. Manoj, FIR No. 23/2012, PS Kanjhawla Page 43 place near ganda nala Mangol Puri from where ultimately the prosecutrix was recovered.

(56) It is also the case of the prosecution that the prosecutrix on her return immediately at the first instance did not disclose about the incident to anyone but within a few hours she disclosed about the incident to her sister and mother after which police was informed at about 7:30 AM, her medical examination was got conducted and her statement under Section 164 Cr.PC was got recorded. (57) Coming first to the deposition of the prosecutrix which has been recorded in vernacular (Hindi), relevant portion of which is reproduced as under:

"06.02.2012 shyam 6­30 baje Jab Main Doodh Le Rahi Thi . To Manoj Jo adalat Main betha hua hai (accused correctly identified) mere paas aaya aur bola - Teri Behan Kahan Hain? Maini usse kaha wo ghar par hai aur agar baat karni hai to ghar par chale jaoo. Jab Main Doodh Kharid Rahi thi, Manoj phir Bola ­ Tujhse Baat Karni Hai. Main­ne usese Bola­Baat Bolo. To Manoj Bola Gari Mai Betho. Tab Ek Ladka Amit(correctly identified the accused Amit present in the court) Kali Gari Main Aaya. Amit Ne Pichala Gate Khola aur Manoj Ne Mujhe Dhakka Diya aur Kehne Laga Chillayegi To Maar Dunga. Phir Dono Mujhe Sunsaan Jagah Par Le Gaye Aur Kaha Jab Tak Nahi Degi to Jane Nahi Denge. Pahle Manoj Ne Gari Main Hi Jabardasti Kari Phir Chala Gaya. Phir Amit State Vs. Manoj, FIR No. 23/2012, PS Kanjhawla Page 44 Gari Sunsan Jagahaon Par Ghumane Laga.

Usne Bhi Jabardasti Kari Phir Mangol Puri Nale Ke Paas Chor Diya. Wahan Se Main Akeli Ghar Aayeee. Ghar Par Maini Yeh Baat Batai aur meri behan mujhe police station Main Le Gai.

Court question : Manoj aur Amit Ne Kya Kiya Tha?

Ans. : Ganda Kaam Kiya Tha.

C.Q, : Kaun Si class Main Padti Ho?

Ans. : VIIth class Main Padti Huan.

C.Q. : Ganda Kaam Se Kya Matlab Hai?

Ans. : Ganda Kaam Se Matlab rape karna hain.

Uske Baad Jab Main Thane Gayee To Wahan Mujhe Anuradha Didi Mili Thi aur unhone mujhse saree baat poochi thi. Uske baad thane main mera bayan huan tha. At this stage the witness identified her statement already Ex.PW­9/A and has identified her signatures at point A. Bayan Ke Baad Main hospital Gai Jahan mera medical hua tha. Medical Ke Baad Hum Thane Main Aa Gaye The. Maini police wale uncle ko woh jagah dikhayee thi jahan se dhakka dekar gadi mein bithya tha. At this stage witness has identified the site plan prepared at her instance which is Ex. PW­10/A and her signatures at point A which she identifies.

Aagle Din Main Court Main Aayee aur maini MM Sahib Ko Sari Baat Batayee Thi.

At this stage prosecutrix had identified her statement Ex.PW­12/B bearing her signatures at point A. Maine Jo Kali Rang Ki Gari Jiska Number Yaad Nahi Hai, Pehchani Thi. Witness State Vs. Manoj, FIR No. 23/2012, PS Kanjhawla Page 45 had identified her signatures on the pointing out memo which is Ex. PW­10/B bearing her signatures at point A. At this stage the witness has informed that the doctor had seized her clothes during the medical examination and she can identify the same. I can identify my clothes which were taken by the doctor ."

(58) The prosecutrix has been exhaustively cross­examined and explained that she was known to Manoj even prior to the incident being friend of her Jija and used to visit their house. She has also admitted that when she returned home she did not tell her father about the incident but only disclosed the incident to her mother and sister and has explained that she did not inform her father because she did not talk about such things with her father. (kyonki papa se is tarah ki baat nahi karti thi). Here, I may observe that this explanation given by the prosecutrix a young girl of hardly 12­13 years is natural and probable. She has further proved that the police was informed by her sister who made a call at 100 number and has denied the suggestion that she has falsely implicated the accused because her father caught her while talking on two to three occasions 2 to 3 days prior of the incident and was annoyed of the same. (59) I may observe that in her earlier statement to the Ld. Magistrate under Section 164 Cr.PC, the prosecutrix had given a similar version which statement is reproduced as under:

State Vs. Manoj, FIR No. 23/2012, PS Kanjhawla Page 46 " ... parson sham 7 baje jab mai doodh lene jane wali thi toh Manoj ka phone hamare mobile par aya, usne mujhse meri did ke bare mie poocha.

Maine kaha ki didi ghar par hi hai. Fir mai doodh lene chali gaye. Raste mai kaali gadi mili. Gadi mae se Manoj nikal kar aya aur usne mujhe gadi mei dhakel diya aur dhamkaya. Gadi mie ek Amit naam ka ladka tha. Fir ve mujhe sun­saan jagah par le gaye. Wahan Amit kuch saaman lene chala gaya aur Manoj ne pere kapde utar diye aur mere sath galat kaam kiya. Usne meri pesab karne wali jagah mie apne pesab karne wali jagah daali.

Kuch der baad Amit aa gaya aur tab Manoj chala gaya. Tab Amit ne mere sath vaisa he kiya jaisa Manoj ne kiya tha. Uske baad usne mujhe bhaga diya. Jaise taise mai apne ghar aa gaye aur apne ghar par sari baat batai. Mere ghar walon ne police mei report karai".

(60) The prosecutrix has been exhaustively cross examined in the court and it is writ large that she has supported the case of the prosecution. She has specifically named both the accused Manoj and Amit in her statement. Before coming to the merits of the case, I may observe that conviction can be based upon the sole testimony of the prosecutrix if found credible and truthful. In this regard the Hon'ble Supreme Court has in the case of State of Rajasthan Vs. Biram Lal reported in 2005 AIR (SC) 2327 held that:

"........It is not the law that in every case version of the prosecutrix must be corroborated in material State Vs. Manoj, FIR No. 23/2012, PS Kanjhawla Page 47 particulars by independent evidence on record. It all depends on the quality of the evidence of the prosecutrix. If the court is satisfied that the evidence of prosecutrix is free from blemish and is implicitly reliable, then on the sole testimony of the prosecutrix, the conviction can be recorded. In appropriate cases, the Court may look for corroboration from independent sources or from the circumstances of the case before recording an order of conviction. In the instant case the allegations were that the accused during night entered the prosecutrix room and committed rape on her, the evidence of the prosecution was found worthy of credit and implicitly reliable....."

(61) In the year 2006 the Hon'ble Apex Court in the case of State of Himachal Pradesh Vs. Asha Ram reported in AIR 2006 SC 381 had observed that:

"...... The evidence of a prosecutrix is more reliable than that of an injured witness. The testimony of a victim of sexual assault is vital unless there are compelling reasons which necessitate looking for corroboration of her statement, the Courts should find no difficulty in acting on the testimony of a victim of sexual assault and to convict an accused where her testimony inspires confidence and is found to be reliable. It is settled law that corroboration is a condition for Judicial Reliance on the testimony of the prosecutrix and is not a requirement of law but a guidance of Prudence under the given State Vs. Manoj, FIR No. 23/2012, PS Kanjhawla Page 48 circumstances. Even minor contradiction or insignificant discrepancies in the statement of the prosecutrix cannot be a ground for throwing out, an otherwise reliable prosecution case.

(62) It was further observed by the Hon'ble Court that:

"..... No girl of self respect and dignity who is conscious of her chastity having expectations of married life and livelihood would accuse falsely against any other person of rape, much less against her father, sacrificing thereby her chastity and also expose the entire family to shame and at the risk of condemnation and ostracization by the society. It is unthinkable to suggest that the mother would go to the extent of inventing a story of sexual assault of her own daughter and tutor her to narrate a story of sexual assault against a person who is no other than her husband and father of girl, at the risk of bringing down their social status and spoil their reputation in the society as well as family circle to which they belong to....."

(63) Further, in the case of Vishnu Vs. State of Maharastra reported in 2006 AIR (SC) 508 it was observed by the Hon'ble Apex Court that:

"..... In the traditional non­permissive bounds of society of India, no girl or woman of self­respect and dignity would depose falsely implicating State Vs. Manoj, FIR No. 23/2012, PS Kanjhawla Page 49 somebody of ravishing her chastity by sacrificing and jeopardizing her future prospect of getting married with suitable match. Not only she would be sacrificing her future prospect of getting married and having family life, but also would invite the wrath of being ostracized and outcast from the society she belongs to and also from her family circle. From the statement of the prosecutrix, it was revealed that the accused induced her to a hotel by creating an impression that his wife was admitted in the hospital and that he would see her first and then drop the prosecutrix at her residence whereas, in fact, she was not admitted in the hospital. On the pretext of going to Hospital, he took her to a hotel, took her inside a room, closed the door of the room, threatened her to finish her if she shouted and then forcibly ravished her sexually. A clear case of rape, as defined under Section 375 Clause third of IPC was found established against the accused...."

(64) Also in the case of Bharwada Boginbhai Hirji Bhai Vs. State of Gujarat reported in 1983 (CRI) GJX 0252 SC: AIR 1983 SC 7453 (1) it was observed by the Hon'ble Supreme Court that in the Indian setting, refusal to act on the testimony of a victim of sexual assault in the absence of corroboration as a rule, is adding insult to injury. Why should the evidence of the girl or the woman who complaints of rape or sexual molestation be viewed with doubt, disbelief or suspicion? To do so is to justify charge of male State Vs. Manoj, FIR No. 23/2012, PS Kanjhawla Page 50 chauvinism in a male dominated society.

(65) Applying the above settled principles of law to the facts of present case, I may observe that the prosecutrix is a young girl of 12­13 years and has been most consistent in her allegations against both the accused. She was known to the accused Manoj previously and in so far as Amit is concerned it is for the first time that she had seen him and had named him in the FIR and has correctly identified him in the Court.

(66) The Ld. Defence Counsel has tried to demolish the case of the prosecution and has argued that the statement made by the prosecutrix to the police and then to Ld. Magistrate and then to the Court, is contradictory on material particulars. Ld. Defence Counsel has pointed out that in the first DD No. 82B, the name of the prosecutrix has not been disclosed. Ld. Defence Counsel has also pointed out that the age given by the prosecutrix is much more than the age shown in her school certificate According to him in her statement under Section 164 Cr.PC the prosecutrix has given her age as 14 years which is contradictory to the age as calculated from the school record (i.e. 12 years). He has also argued that the description of the clothes mentioned in the seizure memo and road certificate does not conform to the typed letter sent to the FSL and hence there may be tampering in the articles sent to the FSL. Ld. Counsel has also argued that when the prosecutrix had left her house she was State Vs. Manoj, FIR No. 23/2012, PS Kanjhawla Page 51 carrying her mobile phone and was able to contact her family and it therefore appears to be impossible that she could have been kidnapped. He has also submitted that it is an admitted case that Manoj himself had assisted in searching the prosecutrix and under the given circumstances it is impossible that he could have committed the offence. Ld. Counsel has pointed out that there are also material contradictions on how many persons picked up her and how many persons were involved in the incident and how she returned home. He has also argued that the baniyan which was allegedly recovered from the vehicle in question, had been in fact planted because it is surprising that earlier the police officials could not recovered the same and it was only FSL official who were able to pick it up from the vehicle in question after about seven days of the incident and hence under the given circumstances the report obtained on the said case property / baniyan cannot be relied upon. Ld. Defence Counsel has placed his reliance on the case of "State of Punjab Vs. Gurmit Singh & Ors." reported in 1996, (Vol. 2), SCC 384, wherein the case of "State of Himachal Pradesh Vs. Asha Ram"

has been distinguished. He has also placed his reliance on the case of "Lalliram & Anr. Vs. State of Madhya Pradesh", Criminal Appeal No. 791 of 2006 decided on 15.9.2008 reported in 2008 (1) SCC 69. The Ld. Defence counsel has vehemently argued that keeping in view the fact that there were no external injuries on the private parts of the State Vs. Manoj, FIR No. 23/2012, PS Kanjhawla Page 52 prosecutrix, the allegations of gang rape and sexual intercourse against the will of the prosecutrix, cannot be substantiated. According to Ld. Counsel, the accused have no role to play in the alleged offence there being no iota of evidence against them. (67) I have considered the rival contentions. At the very outset, I may observe that the prosecutrix is a young girl aged around 12 years (could be little more than 12 but in any case less than 16 years of age not having arrived the age of consent). Although there is no reason to disbelieve her version when she says that she had been physically lifted and sexual intercourse had been committed with her against her wishes. Assuming that it was consensual;

assuming that the prosecutrix went with the accused voluntarily; also assuming that the prosecutrix was carrying her mobile and was in touch with her family, I may observe that the prosecutrix being less than 16 years of age was legally incapable of giving consent and therefore under the given circumstances the question of consent does not arise.

(68) Secondly the prosecutrix has very categorically and consistently named both the accused Amit and Manoj in her statements first before the Police, then before the Ld. Metropolitan Magistrate and thereafter before the Court and has also correctly identified them in the Court ruling out all possibility of any mistaken identity.

State Vs. Manoj, FIR No. 23/2012, PS Kanjhawla Page 53 (69) Thirdly it stands established that the vehicle in question was belonging to the uncle of accused Amit as proved by Surender Mohan (PW15) and this Surender Mohan has proved that on the date of the incident his nephew Amit had borrowed his vehicle in the evening. Hence under the given circumstances this provides an independent corroboration to the testimony of the prosecutrix that she had been picked up in a black coloured accent car which was driven by the accused Amit.

(70) Fourthly in their testimony before the court the father of prosecutrix namely Rehman (PW20), her mother Zarina (PW19) and her sister Sakina (PW18), have all corroborated each other and also the prosecutrix that on the date of the incident she had gone to the market to buy milk in the evening after she did not return for a long time. They have proved that they searched for her in the area but when could not be traced they approached the police. In fact Sakina and Zarina have also corroborated the testimony of prosecutrix to the extent that after she returned to house. Initially the prosecutrix did not inform them anything but it was later that she informed that both the accused had taken her and raped her and also threatened her not to disclose this fact to the police at the time of her recovery. They have also explained that it was next morning at about 7 AM they went to the police station and inquiries were made from them. The accused Manoj was known to the prosecutrix and her family being State Vs. Manoj, FIR No. 23/2012, PS Kanjhawla Page 54 brother of her brother­in­law / Jija and had even come to her house on couple of occasions and remained at her house for 10 to 15 minutes but she did not know the accused Amit prior to the incident. The family of the accused also explained that they were not known to the accused Amit previously. The prosecutrix is a young girl (virtually a child) therefore there is no reason to disbelieve her version. Whether she went to the accused of her own or calling or whether she met him on the way, becomes immaterial keeping in view her age. The explanation forthcoming for the delay in the prosecutrix informing her family about the incident appears to be natural and probable and delay of few hours is not fatal to the case of the prosecution.

(71) Fifthly there is further no reason to disbelieve the version of the prosecutrix to the extent that it was Amit who was driving the car and Manoj pulled her inside. She has specifically alleged that first it was Manoj who did jabardasti with her (raped her) and then Amit drove the vehicle to various places and then took her to an isolated place and left her near Mangolpuri ganda nala from where she returned home. This fact also stands corroborated and established from the version given by her sister and also the Investigating Officer who have both confirmed that prosecutrix when contacted on phone informed them about the place where she was dropped and also confirmed that the prosecutrix was recovered from State Vs. Manoj, FIR No. 23/2012, PS Kanjhawla Page 55 ganda nala Mangolpuri.

(72) Sixthly the collection of various exhibits including clothes and valval swab, vaginal swab and vaginal smears have been duly proved by the doctors and on the said aspect their evidence has gone uncontroverted. The DNA Fingerprinting Analysis conclusively establishes the presence of biological stains of Manoj in the right valval swab, left vaginal swab, high vaginal swab, vaginal smear slides, Salwar of the prosecutrix which she was wearing at the time of the incident and the baniyan recovered from the vehicle when inspected by the FSL Expert. It is this which clinches the entire issue and confirms the incident and also the involvement of the accused Manoj.

(73) Seventhly the fact that despite Amit having raped the prosecutrix later yet the DNA Fingerprinting Report does not confirms the presence of Biological stains of Amit in the exhibits i.e. right valval swab, left vaginal swab, high vaginal swab, vaginal smear slides, Salwar of the prosecutrix which she was wearing at the time of the incident and the baniyan recovered from the vehicle, will not assist the defence in any manner. There could be a large number of reasons for the absence of Biological stains of Amit in the exhibits of the prosecutrix like use of condoms; not having ejaculated etc. and this cannot be a reason to reject the testimony of the prosecutrix qua the accused Amit which testimony has been otherwise found to be State Vs. Manoj, FIR No. 23/2012, PS Kanjhawla Page 56 reliable.

(74) Eighthly the accused Manoj in his statement under Section 313 Cr.PC has admitted that he is known to the family of the prosecutrix and has also conceded the incident in question when the prosecutrix had gone missing and states that he had in fact helped her family in searching the prosecutrix along with the police officials and in this regard he has examined one Rajesh Kumar his friend as DW1 who has confirmed that Sukhbir and Renu had taken Manoj away. He has further examined one HC Sukhbir Singh from Police Station Begumpur as his witness as DW3 who has confirmed the case of the accused Manoj that he had been living with one lady by the name of Renu (a live­in relationship) and the sister of the prosecutrix i.e. Sakina is the friend of Renu. According to Manoj, he had helped Sakina in tracing out the prosecutrix which fact both Renu and HC Sukhbir (DW3) have admitted. However, HC Sukhbir has further explained that throughout Sakina had been expressing her suspicion on Manoj and it if because of this reason he had called the accused Manoj a police informer of the area. HC Sukhbir has further explained that initially Manoj had told him that he was at some other place but thereafter he joined the search when they picked him of from the SGM Hospital (which is on the way to Mangol Puri drain) and even then Sakina kept on insisting that Manoj was telling lies when he was pleading ignorance and that he had passed off her sister State Vs. Manoj, FIR No. 23/2012, PS Kanjhawla Page 57 to some other person. This being the evidence which the accused Manoj had himself chosen to lead in his defence there is no reason to reject the same. It rather lends independent corroboration to the version given by the prosecutrix that she was first raped by the accused Manoj who thereafter went away leaving her with Amit who drove her to the lonely spots and raped her and left her at ganda nala Mangol Puri. Perhaps after Manoj left the company of Amit that he joined HC Sukhbir, Sakina and Renu in search of the prosecutrix claiming innocence. HC Sukhbir (DW3) has confirmed that Sakina throughout had been specifically alleging that he was feigning ignorance only to save himself from penal consequences and this apprehension of Sakina was confirmed when the prosecutrix disclosed to her that it was Manoj who had actually kidnapped her along with Amit and first committed rape upon her and the DNA Fingerprinting report conclusively connects Manoj to the offence despite all claims to the contrary.

(75) Ninethly as pointed out by the Ld. Defence Counsel no doubt there are some contradictions in the testimony of the prosecutrix with regard to the time, when she informed her sister about the incident, the place from where she was recovered. These contradictions are however not fatal to the case of prosecution. The prosecutrix 'M' is hardly a child hardly aged about 12­13 years and even when she appeared in the Court to depose she was extremely State Vs. Manoj, FIR No. 23/2012, PS Kanjhawla Page 58 perturbed and had even broken down while narrating the incident. The entire incident right from her kidnapping to her repeated sexual assault / rape by both the accused in the car and then having been dropped at an unknown place would have been extremely traumatic for the child to have precisely remembered the time, places where she was taken, the manner in which the sequence of events took place etc. Hence, it is not expected for such a witness to recall everything as if possessing a photographic memory and replaying the entire incident on a mental screen. Reference is being made to the case of Bharwada Boginbhai Hijri Bhai Vs. State of Gujarat, reported in 1983 (CRI) GJX 0252 SC: AIR 1983 SC 7453 (1) wherein it was observed by the Hon'ble Apex Court under similar circumstances that ".... a witness, though wholly truthful, is liable to be overawed by the court atmosphere and the piercing cross­examination made by counsel and out of nervousness mix up facts, get confused regarding sequence of events, of fill up details from imagination on the spur of the moment and that the subconscious mind of the witness sometimes so operates on account of the fear of looking foolish or being disbelieved though the witness is giving a truthful and honest account of the occurrence witnessed by him perhaps it is a sort of psychological defence mechanism activated on the moment....". Hence, in the present case merely because the child / victim has made certain improvements or filled up some details would not shake her State Vs. Manoj, FIR No. 23/2012, PS Kanjhawla Page 59 testimony otherwise found to be truthful and credible. (76) Lastly there being sufficient independent corroboration to the testimony of the prosecutrix and there being no history of previous enmity between the prosecutrix and the accused Amit. There is no reason why the prosecutrix or her family who were not even known to Amit and had seen him for the first time only when the incident took place, would falsely implicate him. As per the provisions of Section 376 (2) (g) Indian Penal Code once it is established that the accused have acted in concert then all of them are equally liable under Section 376 Indian Penal Code (Ref.:

Explanation­1 to Clause (g) of Section 376 (2) IPC). In the present case in so far as the accused Manoj is concerned there is no dispute and he has been conclusively nailed by the DNA Fingerprinting Report. In so far as the accused Amit is concerned he was not known to the prosecutrix previously. The prosecutrix him as identified him as the boy who was driving the black coloured car whose number she did not know. It was only after after the arrest of the accused that Amit disclosed that the said black colour car was Hyundai Accent bearing No. DL­2CW­2698 belonging to his uncle Surender Mohan which he had borrowed on the date of the incident and in pursuance to the said disclosure he got recovered the said car. His disclosure in this regard is admissible in evidence [in this regard reference is being made to the cases of K. Chinnaswamy Reddy Vs. State of A.P. State Vs. Manoj, FIR No. 23/2012, PS Kanjhawla Page 60 reported in AIR 1962 SC 1788; Zaffar Hussain Dastagir Vs. State of Maharastra reported in 1969 (2) SCC 872 and State (NCT of Delhi) Vs. Navjot Sandhu with Shaukat Hussain Guru Vs. State (NCT of Delhi) reported in AIR 2005 SC 3820]. In fact independent corroboration is forthcoming to the disclosure made by Amit from the testimony of his uncle Surender Mohan and there is no reason why Surender Mohan would falsely implicate him. Further, on inspection of the said vehicle by FSL team a baniyan was recovered from the same which was sent for FSL DNA Fingerprinting examination which confirms the presence of biological stains of Manoj on the same. How this baniyan came to the vehicle belonging to Surender Mohan which Amit had borrowed on the evening of the incident, is a fact which was in his Special Knowledge which he has failed to explain. This being the background, there is no reason to doubt the version given by the prosecutrix qua Amit and the accused Amit being present with accused Manoj at the time of the incident makes him culpably liable for the same. Although, there is no reason to doubt the testimony of the prosecutrix that after Manoj went away the accused Amit drove to her lonely spots and also committed rape upon her assuming that the accused Amit actually did participate in the commission of rape yet the Explanation­1 to Clause (g) of Section 376 (2) IPC make him liable for the same. The fact that both the accused Manoj and Amit having acted in concert make them both State Vs. Manoj, FIR No. 23/2012, PS Kanjhawla Page 61 liable for the offences charged.

FINAL CONCLUSION:

(77) In the case of Sharad Birdhichand Sarda Vs. State of Maharastra, AIR 1984 SC 1622, the Apex Court has laid down the tests which are pre­requisites before conviction should be recorded, which are as under:

1. The circumstances from which the conclusion of guilt is to be drawn should be fully established.

The circumstances concerned 'must or should' and not 'may be' established;

2. The facts so established should be consistent only with the hypothesis of the guilt of the accused, that is to say, they should not be explainable on any other hypothesis except that the accused is guilty;

3. The circumstances should be of conclusive nature and tendency;

4. They should exclude every possible hypothesis except the one to be proved; and

5. There must be a chain of evidence so complete as not to leave any reasonable ground for the conclusion consistent with the innocence of the accused and must show that in all human probability the act must have been done by the accused.

(78) Applying the above principles of law to the facts of present case, it is evident that the investigations conducted including the documents prepared in the present case have been substantially State Vs. Manoj, FIR No. 23/2012, PS Kanjhawla Page 62 proved by the police witnesses including the investigating officer. On the basis of testimonies of the various witnesses examined by the prosecution, the following facts stand established:

➢ That at the time of the incident the prosecutrix 'M' was a minor aged around 12­13 years and was studying in class 7th. ➢ That the accused Manoj was previously known to the family of the prosecutrix 'M' being the friend of her brother in law / Jija and even occasionally visited their house.

➢ That on 6.2.2012 at about 6:30 PM the prosecutrix 'M' had gone to market to buy milk.

➢ That on the way the prosecutrix met the accused Manoj who asked her about the whereabouts of her sister on which she told him that her sister was at home and if he wanted to speak to her he should go to her house.

➢ That in the meanwhile the accused Amit came there in a black colour car bearing No. DL2C­W2698 (belonging to Sunder Mohan - the uncle of accused Amit) and opened the door of the car on which the accused Manoj forcibly pushed the prosecutrix 'M' inside the case and threatened not to raise any alarm or else he would kill her.

➢ That thereafter the accused Manoj and Amit took the prosecutrix at an isolated place where first Manoj committed rape upon her in the car itself and went away.

State Vs. Manoj, FIR No. 23/2012, PS Kanjhawla Page 63 ➢ That accused Amit took the prosecutrix 'M' in the car to various isolated places and also committed rape upon her. ➢ That thereafter Amit dropped the prosecutrix 'M' near Mangolpuri Ganda Nala.

➢ That both the accused had threatened the prosecutrix not to disclose about the incident to anybody.

➢ That in the meanwhile when the prosecutrix 'M' did not return from market for a very long time and her family was alerted on which they started to search for her.

➢ That the family of the prosecutrix lodged a missing report with the local police and started searching the prosecutrix 'M'. ➢ That the sister of the prosecutrix namely Sakina had her suspicions on the accused Manoj who was also the informer of the police and hence she along with Renu the live­in partner of Manoj approached HC Sukhbir to help them in tracing out the prosecutrix.

➢ That HC Sukhbir on his personal level provided assistance to Sakina and Renu and made a call to accused Manoj asking him to join them in the search of the prosecutrix. ➢ That accused Manoj joined HC Sukhbir, Sakina and Renu in the search of the prosecutrix which is despite repeated protests by Sakina and her suspicion that Manoj had passed off her sister to somebody which Manoj denied.

State Vs. Manoj, FIR No. 23/2012, PS Kanjhawla Page 64 ➢ That Sakina repeatedly alleged that Manoj was aware of the whereabouts of the prosecutrix but was only pleading ignorance and joining the search to save himself from penal consequences.

➢ That in the meanwhile the other sister of the prosecutrix namely Akeena telephoned the prosecutrix on the mobile phone which she was carrying when she left the house and on which she was previously not responding which call was received by the prosecutrix in the late night hours who informed her that she had been kidnapped and dropped near Mangol Puri ganda nala.

➢ That she immediately passed on the message to her other sister who was searching for the prosecutrix and the prosecutrix was thereafter recovered by Sakina, Renu in the presence of the local police and the accused Manoj.

➢ That initially when the prosecutrix was recovered at around 12:00 midnight she did not disclose anything about the incident to her family members but it was after a couple of hours that she confided in her sisters and mother about what had happened and immediately on the next day morning she was taken to the Police Station by her family where she informed the police of the incident.

State Vs. Manoj, FIR No. 23/2012, PS Kanjhawla Page 65 ➢ That when the prosecutrix was taken to the police station she was in the same clothes which she was wearing at the time of incident and had not taken her bath.

➢ That in the Police Station statement of the prosecutrix was recorded on which the present case was registered and her medical examination was got conducted (including internal examination) where the exhibits were collected by the doctors. ➢ That the statement of the prosecutrix was also got recorded under Section 164 Cr.P.C. from the Ld. MM wherein she supported the version given by her to the police. ➢ That during the investigations after Amit was arrested pursuant to his disclosure he got recovered the vehicle in which the offence had been committed i.e. black coloured Hyundai Accent car bearing No. DL­2CW­2698 belonging to his uncle Surender Mohan which he had borrowed on the evening of the incident.

(79) The medical evidence on record is compatible to the prosecution case and the hymen tear confirms the rape having being committed on the minor prosecutrix. The forensic evidence in the form of DNA Fingerprinting Report establishes that the profile generated from the source Ex.1b (i.e. right valval swab), Ex.1c (i.e. left vaginal swab), Ex.1h (i.e. high vaginal swab), Ex.1il and Ex.1i2 State Vs. Manoj, FIR No. 23/2012, PS Kanjhawla Page 66 (i.e. vaginal smear slides), Ex.1L (i.e. Salwar) and Ex.10 (i.e. Baniyan) belonging to the prosecutrix and the DNA Fingerprinting profile generated from the source of Ex.3 (blood sample of accused Manoj) is sufficient to conclude that the blood sample of Manoj is responsible for the biological stains present on the above exhibits of the prosecutrix. The DNA Fingerprinting report conclusively connects the accused Manoj to the offence since the biological stains of Manoj were found to be present on the exhibits of the prosecutrix and therefore, it is this which conclusively and finally clinches the issue in so far as the accused Manoj is concerned and connects him with the offence committed on the prosecutrix. (80) The prosecutrix 'M' has very categorically and consistently named both the accused Amit and Manoj in her statements first before the Police, then before the Ld. Metropolitan Magistrate and thereafter before the Court. There being sufficient independent corroboration to the testimony of the prosecutrix and there being no history of previous enmity between the prosecutrix and the accused Amit, there is no reason why she would falsely implicate Amit.

(81) There are two stages in criminal prosecution. The first obviously is commission of the crime and the second is investigation conducted regarding the same. In case the investigation is faulty or has not been proved in evidence at trial, the question which arise is State Vs. Manoj, FIR No. 23/2012, PS Kanjhawla Page 67 whether it would absolve the liability of the culprit who has committed the offence? The answer is obviously in negative, since any lapse on the part of the investigation does not negate the offence. (82) The prosecution has proved the identity of the accused, the manner in which the offence has been committed, place of commission of the offence, the investigation including the documents prepared, MLCs, etc. There is nothing which could shatter the veracity of the prosecution witnesses or falsify the claim of the prosecution. All the prosecution witnesses have materially supported the prosecution case and the testimonies of the prosecution witnesses do not suffer from any infirmity, material inconsistency or contradiction and are consistent and corroborative. The evidence of the prosecution witnesses is natural and trustworthy and corroborated by circumstantial evidence and the witness of the prosecution have been able to built up a continuous link.

(83) In view of the above, I hold that the prosecution has been able to prove and substantiate the allegations against the accused Manoj and Amit of having kidnapped the minor prosecutrix 'M' for forcing / seducing her to illicit intercourse and thereafter having committed gang rape upon her, criminally intimidated her not to disclose about the incident to anybody in pursuance to which threat the prosecutrix initially did not disclose about the incident to anybody but after great persuasions of her family members she State Vs. Manoj, FIR No. 23/2012, PS Kanjhawla Page 68 disclosed about the incident to her mother and sisters after a few hours. I hereby hold both the accused Manoj and Amit guilty for the offence under Section 363, 366, 376 (2) (g) and 506 Indian Penal Code. The accused is accordingly convicted for the same. (84) Be listed for arguments on sentence on 15.2.2013.

Announced in the open Court                        (Dr. KAMINI LAU)
Dated: 11.02.2013                                ASJ (NW)­II: ROHINI




State Vs. Manoj, FIR No. 23/2012, PS Kanjhawla                 Page 69
    IN THE COURT OF Dr. KAMINI LAU: ADDL. SESSIONS 
    JUDGE­II (NORTH­WEST): ROHINI COURTS: DELHI
Sessions Case No. 31/2012
Unique Case ID: 02404R0096322012
State    Vs.       (1)      Manoj
                            S/o Ajay Kumar Yadav 
                            R/o M­559, Mangolpuri, Delhi.
                            (Convicted)

                            (2)            Amit 
                                           S/o Jitender Gupta 
                                           R/o Kuwa Wali Gali 
                                           near Sharma Property,
                                           Budh Vihar­II, Delhi.
                                           (Convicted)


FIR No.:                                   23/2012
Police Station:                            Kanjhawla
Under Section:                             376 (2) (g)/506/363 IPC 

Date of conviction:                        11.02.2013

Arguments concluded on:                    15.2.2013

Date of sentence:                          19.2.2013


APPEARANCE:

Present:      Ms. Raj Rani Addl. Public Prosecutor for the State.

              Convict Manoj in Judicial Custody.

Convict Amit in Judicial Custody with Ms. Mukesh Kharb Advocate.

State Vs. Manoj, FIR No. 23/2012, PS Kanjhawla Page 70 ORDER ON SENTENCE:

As per the allegations, on 6.2.2012 in the Gali near Shilpa Gas Agency, the accused Manoj and Amit kidnapped the prosecutrix 'M' a minor aged about 12­13 years, from the lawful guardianship of her parents with intention to force or seduce her to illicit intercourse and thereafter committed rape upon her in a car and criminally intimidate her to kill if she disclosed about the incident to anybody.

The prosecutrix 'M' has appeared in the Court and made specific allegations against both the accused Manoj and Amit. On the basis of the testimonies of various prosecution witnesses particularly the prosecutrix 'M', her sister Sakina and also on the basis of the medical, forensic and circumstantial evidence on record, this Court vide judgment dated 11.02.2013 has observed that it stood established that at the time of the incident the prosecutrix 'M' was a minor aged around 12­13 years and was studying in class 7th and that the accused Manoj was previously known to the family of the prosecutrix 'M' being the friend of her brother in law / Jija and occasionally visited their house. It has also been established that on

6.2.2012 at about 6:30 PM the prosecutrix 'M' had gone to the market to buy milk; that on the way the prosecutrix met the accused Manoj who asked her about the whereabouts of her sister on which she told him that her sister was at home and if he wanted to speak to her he should go to her house; that in the meanwhile the accused Amit came State Vs. Manoj, FIR No. 23/2012, PS Kanjhawla Page 71 there in a black colour car bearing No. DL2C­W2698 (belonging to Sunder Mohan - the uncle of accused Amit) and opened the door of the car on which the accused Manoj forcibly pushed the prosecutrix 'M' inside the case and threatened not to raise any alarm or else he would kill her; that thereafter the accused Manoj and Amit took the prosecutrix at an isolated place where first Manoj committed rape upon her in the car itself and went away; that accused Amit took the prosecutrix 'M' in the car to various isolated places and also committed rape upon her; that thereafter Amit dropped the prosecutrix 'M' near Mangolpuri Ganda Nala; that both the accused had threatened the prosecutrix not to disclose about the incident to anybody. It was further observed by this Court that it also stood established that in the meanwhile when the prosecutrix 'M' did not return from market for a very long time and her family was alerted on which they started to search for her; that the family of the prosecutrix lodged a missing report with the local police and started searching the prosecutrix 'M'; that the sister of the prosecutrix namely Sakina expressed her suspicion on the accused Manoj who was also the informer of the police and hence she along with Renu the live­in partner of Manoj approached HC Sukhbir to help them in tracing out the prosecutrix; that HC Sukhbir on his personal level provided assistance to Sakina and Renu and made a call to accused Manoj asking him to join them in the search of the prosecutrix; that State Vs. Manoj, FIR No. 23/2012, PS Kanjhawla Page 72 accused Manoj joined HC Sukhbir, Sakina and Renu in the search of the prosecutrix which is despite repeated protests by Sakina and her suspicion that Manoj had passed off her sister to somebody which Manoj denied; that Sakina repeatedly alleged that Manoj was aware of the whereabouts of the prosecutrix but was only pleading ignorance and joining the search to save himself from penal consequences; that in the meanwhile the other sister of the prosecutrix namely Akeena telephoned the prosecutrix on the mobile phone which she was carrying when she left the house and on which she was previously not responding which call was received by the prosecutrix in the late night hours who informed her that she had been kidnapped and dropped near Mangol Puri ganda nala; that she immediately passed on the message to her other sister who was searching for the prosecutrix and the prosecutrix was thereafter recovered by Sakina, Renu in the presence of the local police and the accused Manoj; that initially when the prosecutrix was recovered at around 12:00 midnight she did not disclose anything about the incident to her family members but it was after a couple of hours that she confided in her sisters and mother about what had happened and immediately on the next day morning she was taken to the Police Station by her family where she informed the police of the incident; that when the prosecutrix was taken to the police station she was in the same clothes which she was wearing at the time of incident and State Vs. Manoj, FIR No. 23/2012, PS Kanjhawla Page 73 had not taken her bath; that in the Police Station statement of the prosecutrix was recorded on which the present case was registered and her medical examination was got conducted (including internal examination) where the exhibits were collected by the doctors; that the statement of the prosecutrix was also got recorded under Section 164 Cr.P.C. from the Ld. MM wherein she supported the version given by her to the police; that during the investigations after Amit was arrested pursuant to his disclosure he got recovered the vehicle in which the offence had been committed i.e. black coloured Hyundai Accent car bearing No. DL­2CW­2698 belonging to his uncle Surender Mohan which he had borrowed on the evening of the incident.

This court further observed that the medical evidence on record was compatible to the prosecution case and the hymen tear confirmed the rape having being committed on the minor prosecutrix. The forensic evidence in the form of DNA Fingerprinting Report established that the profile generated from the source Ex.1b (i.e. right valval swab), Ex.1c (i.e. left vaginal swab), Ex.1h (i.e. high vaginal swab), Ex.1il and Ex.1i2 (i.e. vaginal smear slides), Ex.1L (i.e. Salwar) and Ex.10 (i.e. Baniyan) belonging to the prosecutrix and the DNA Fingerprinting profile generated from the source of Ex.3 (blood sample of accused Manoj) is sufficient to conclude that the blood sample of Manoj was responsible for the State Vs. Manoj, FIR No. 23/2012, PS Kanjhawla Page 74 biological stains present on the above exhibits of the prosecutrix. It has been observed that the DNA Fingerprinting report conclusively connect the accused Manoj to the offence since the biological stains of Manoj were found to be present on the exhibits of the prosecutrix and therefore, it is this which conclusively and finally clinches the issue in so far as the accused Manoj is concerned and connect him with the offence committed on the prosecutrix. Further, it has been held that the prosecutrix 'M' has very categorically and consistently named both the accused Amit and Manoj in her statements first before the Police, then before the Ld. Metropolitan Magistrate and thereafter before the Court. There being sufficient independent corroboration to the testimony of the prosecutrix and there being no history of previous enmity between the prosecutrix and the accused Amit, there was no reason why she would falsely implicate Amit.

This Court has further held that the prosecution has been able to prove and substantiate the allegations against the accused Manoj and Amit of having kidnapped the minor prosecutrix 'M' for forcing / seducing her to illicit intercourse and thereafter having committed gang rape upon her, criminally intimidated her not to disclose about the incident to anybody in pursuance to which threat the prosecutrix initially did not disclose about the incident to anybody but after great persuasions of her family members she disclosed about the incident to her mother and sisters after a few State Vs. Manoj, FIR No. 23/2012, PS Kanjhawla Page 75 hours. Therefore hold both the accused Manoj and Amit have been held guilty for the offence under Section 363, 366, 376 (2) (g) and 506 Indian Penal Code and accordingly convicted.

I have heard arguments on the point of sentence. The convict Manoj is stated to be a young boy of 24 years having a family comprising of aged parents and three sisters. He is 9th class pass and is doing the work of Kharad along with his father. Ld. Counsel for the convict has vehemently argued that the convict is the only helping hand of his family. He requests that keeping in view the young age and family background of the convict a lenient view be taken against him.

The convict Amit is stated to be a young boy of 24 years having a family comprising of aged widow mother, one younger brother and one younger married sister. He is 9th class pass and is a Driver by profession. Ld. Counsel for the convict has vehemently argued that the convict is the helping hand of his family. He requests that keeping in view the young age and family background of the convict a lenient view be taken against him.

On the other hand the Ld. Addl. Public Prosecutor for the State has prayed for a stern view against the convicts keeping in view the allegations allegations and also in view of the fact that the prosecutrix 'M'' was a minor aged about 12­13 years at the time of the incident. It is pointed out that the convict Manoj is involved in two State Vs. Manoj, FIR No. 23/2012, PS Kanjhawla Page 76 other cases i.e. FIR No. 421/10, under Sections 380/457/34 IPC, Police Station Vijay Vihar and FIR No. 548/10, under Section 324/341/34 IPC, Police Station Mangol Puri. It is also submitted that the convict Amit is involved in four other cases details of which are as under:

1. FIR No. 421/10, under Sections 380/457/34 IPC, Police Station Vijay Vihar.

2. FIR No. 436/11, under Sections 356/379/411 IPC, Police Station Subhash Palace.

3. FIR No. 72/2011, under Sections 25 Arms Act, Police Station Punjabi Bagh.

4. FIR No. 379/2008, under Sections 336/506 IPC, Police Station Mangol Puri.

It is argued that both the convicts are local criminals and keeping in view their previous involvements, they do not deserve any leniency.

I have considered the rival contentions. The Hon'ble Supreme Court has in the judgment of State of Andhra Pradesh Vs. Gangula Satya Murthy reported in JT 1996 (10) SC 550, observed as under:

"Courts are expected to show great responsibility while trying an accused on charges of rape. They must deal with such cases with utmost sensitivity.."

State Vs. Manoj, FIR No. 23/2012, PS Kanjhawla Page 77 In the case of Shri Bodhisattwa Gautm Vs. Miss Subhra Chakraborty reported in AIR 1996 SC 922, the Hon'ble Apex Court observed that:­ "Rape destroys the entire psychology of a woman and pushes her into deep emotional crisis. It is a crime against basic human rights, and is also violative of the victim's most cherished of the Fundamental Rights, namely, the Right to Life contained in Article 21 of the Constitution of India, 1950 (in short the 'Constitution'). The Courts are, therefore, expected to deal with cases of sexual crime against women with utmost sensitivity. Such cases need to be dealt with sternly and severely. A socially sensitized judge, in our opinion, is a better statutory armour in cases of crime against women than long clauses of penal provisions, containing complex exceptions and provisions."

It has been held by the Hon'ble Supreme Court in the case reported in AIR 2000 Supreme Court 1470 that:

"...... Socio­economic, status, religion, race caste or creed of the accused or the victim are irrelevant considerations in sentencing policy. Protection of society and deterring the criminal is the avowed object of law and that is required to be achieved by imposing an appropriate sentence. The sentencing courts are expected to consider all relevant facts and circumstances bearing on the question of sentence and proceed to impose a sentence State Vs. Manoj, FIR No. 23/2012, PS Kanjhawla Page 78 commensurate with the gravity of the offence. Courts must hear the loud cry for justice by the society in cases of heinous crime of rape on innocent helpless girls of tender years, and respond by imposition of proper sentence. Public abhorrence of the crime needs reflection through imposition of appropriate sentence by the court......"

It has been held by the Hon'ble Supreme Court that it is necessary for the court to keep in mind that the object should be to protect the society and to deter the criminal in achieving the avowed object to law by imposing appropriate sentence. The Courts are expected to operate the sentencing system so as to impose such sentence which reflects the conscience of the society and sentencing process has to be stern where it should be. (Ref: Siddarama and Ors. Vs. State of Karnataka reported in 2006 IV AD (Crl.) SC 78).

The offence of rape is barbaric in nature where the victim is ravished like an animal for the fulfillment of desire and lust of another man. As observed by Hon'ble Mr. Justice Arijit Pasayat a murderer destroys the physical frame of the victim whereas the rapist degrades and defiles the soul of a helpless female. The primary obligation of the Courts is to ensure that minors are protected from all kind of exploitations. In the words of Hon'ble Apex Court (Ref.:

T.K. Gopal Vs. State of Karnataka reported in AIR 2000 SC 1669) sexual offences constitute an altogether different kind of crime which State Vs. Manoj, FIR No. 23/2012, PS Kanjhawla Page 79 is the result of a perverse mind and those who are psychologically sadistic persons.

The prosecutrix 'M' aged about 12­13 years was a soft and vulnerable target and she was not in a position to offer any resistance to the convicts. The convicts have taken advantage of a helpless and defenceless minor girl who could not even try to escape or express herself and was an easy and vulnerable prey. She must have undergone immense physical pain and agony when the offence was committed. The convicts went on to commit the ghastly, abominable, inhuman and barbaric act of rape, violating the person of the prosecutrix giving a lifelong trauma to the victim and her family.

In so far as the convict Manoj is concerned, he was the informer of the local police and has taken undue advantage of that status and felt that he was above the Law. This Court has also observed that even the police has been most indulgent and the investigations conducted were extremely casual and the possibility of this being so only to help the informer i.e. convict Manoj cannot be ruled out but for the fact that there was other over­whelming evidence (Direct, Circumstantial, Medical and Forensic) against him. The aggravating factor in the present case as against Manoj is that he was having a live­in relationship with one Renu and the sister of the prosecutrix namely Sakina was a friend of this Renu. There was a dispute between the convict Manoj and Renu due to which reason State Vs. Manoj, FIR No. 23/2012, PS Kanjhawla Page 80 they frequently approached the Local Police and Sakina (sister of the prosecutrix) sided with Renu being her friend and perhaps it is for this reason that the convict decided to teach a lesson to Sakina. It is evident from the record that when the prosecutrix / victim was going to the market and met Manoj he first asked for her sister Sakina. However, after some time he instead took her away. It is writ large that not finding Sakina the convict Manoj targeted her younger minor sister 'M' hardly aged 12­13 years. This incident being a rape for purposes of revenge, only to teach Sakina and Renu a lesson cannot be over­looked and hence the convict Manoj deserves no leniency. I hereby award the following sentences to the convict Manoj:

1. For the offence under Section 363 Indian Penal Code the convict is sentenced to Rigorous Imprisonment for Five (5) Years and fine to the tune of Rs.5,000/­. In default of the payment of fine the convict shall undergo Simple Imprisonment for a period of Fifteen Days.

2. For the offence under Section 366 Indian Penal Code the convict is sentenced to Rigorous Imprisonment for Seven (7) Years and fine to the tune of Rs.5,000/­. In default of the payment of fine the convict shall undergo Simple Imprisonment for a period of Fifteen Days. State Vs. Manoj, FIR No. 23/2012, PS Kanjhawla Page 81

3. For the offence under Section 376 (2) (g) r/w 506 Indian Penal Code the convict is sentenced to Rigorous Imprisonment for Life and fine to the tune of Rs.

50,000/­. In default of the payment of fine the convict shall undergo Simple Imprisonment for a period of Three Months.

All the sentences shall run concurrently.

In so far as the convict Amit is concerned, I award the following sentences to him:

1. For the offence under Section 363 Indian Penal Code the convict is sentenced to Rigorous Imprisonment for Five (5) Years and fine to the tune of Rs.5,000/­. In default of the payment of fine the convict shall undergo Simple Imprisonment for a period of Fifteen Days.

2. For the offence under Section 366 Indian Penal Code the convict is sentenced to Rigorous Imprisonment for Seven (7) Years and fine to the tune of Rs.5,000/­. In default of the payment of fine the convict shall undergo Simple Imprisonment for a period of Fifteen Days.

3. For the offence under Section 376 (2) (g) r/w 506 Indian Penal Code the convict is sentenced to State Vs. Manoj, FIR No. 23/2012, PS Kanjhawla Page 82 Rigorous Imprisonment for Ten (10) Years and fine to the tune of Rs.10,000/­. In default of the payment of fine the convict shall undergo Simple Imprisonment for a period of One Month.

All the sentences shall run concurrently.

Benefit of Section 428 Code of Criminal Procedure shall be given to both the convicts for the period already undergone by them during the trial, as per rules.

The convicts are informed that they have a right to prefer an appeal against this judgment. They have been apprised that in case they cannot afford to engage an advocate, he can approach the Legal Aid Cell, functioning in Tihar Jail or write to the Secretary, Delhi High Court Legal Services Committee, 34­37, Lawyers Chamber Block, High Court of Delhi, New Delhi.

Copy of the judgment and order on sentence be given to both the convicts free of cost and another copy of the sentence be attached with their jail warrants.

File be consigned to Record Room.

Announced in the open court                         (Dr. KAMINI LAU)
Dated: 19.2.2013                                  ASJ­II(NW)/ ROHINI




State Vs. Manoj, FIR No. 23/2012, PS Kanjhawla                       Page 83