Delhi District Court
Sc No. 40/11 State vs Prahlad @ Pahalad @Pappu on 22 February, 2014
IN THE COURT OF ADDITIONAL SESSIONS JUDGE : SE01
DESIGNATED JUDGE: TADA/POTA/MCOCA: SAKET
COURTS: NEW DELHI
PRESIDED BY : MS. RENU BHATNAGAR
IN THE MATTER OF
CASE ID NO. 02406R0126892011
SESSIONS CASE NO. 40/11
FIR NO. 329/10
POLICE STATION : SANGAM VIHAR
UNDER SECTION : 363/366/376 IPC
STATE
VERSUS
PRAHLAD @ PAHALAD @PAPPU
S/O SH. MAWASI LAL,
R/O F3/453, SANGAM VIHAR, NEW DELHI.
PRESENT ADDRESS: H.NO. F3/786, SANGAM VIHAR,
NEW DELHI.
DATE OF INSTITUTION : 04.12.2010.
DATE OF RESERVING ORDER : 23.01.2014.
DATE OF DECISION : 22.02.2014.
J U D G M E N T
Case of Prosecution:
1. The brief facts of the prosecution case are that on 25.09.2010 Smt. Beena W/o Late Sh. Devraj R/o F3/453, Sangam Vihar, New Delhi came to police station and gave her statement that she is residing as tenant SC No. 40/11 State Vs Prahlad @ Pahalad @Pappu Page No. 1 of 25 in the aforesaid address. Her daughter namely 'X' (name withheld to keep her identity confidential) studying in class 5th went for her school but did not return home. She searched the prosecutrix 'X' but could not found her. She made suspicion upon the accused namely Prahlad and upon her complaint, case was registered against the accused. Prosecutrix was searched. On 26.09.2010 complainant Smt. Beena came to police station and informed that her daughter 'X' is sitting at H.No. 164, Dayanand Colony, Amar colony. On enquiry, prosecutrix told that Smt .Amardeep had found her at Pragati Maidan and brought her to Dayanand Colony.
Prosecutrix was medically examined at AIIMS Hospital. Statement of prosecutrix under section 164 Cr.P.C was got recorded. After recording her statement, section 366 IPC was added in the charge sheet. On 06.10.2010 accused Prahlad was arrested and was got medically examined at AIIMS Hospital. Age proof of prosecutrix was recovered from her school. Exhibits were sent to FSL, Rohini for examination. Thereafter, statement of witnesses were got recorded by the Investigating officer and after completion of investigation, charge sheet under Section 363/366 IPC was filed against the accused in the court.
2. Since the offence under Section 366 IPC is exclusively triable by the court of Sessions, therefore, after supply of documents, Ld. Metropolitan Magistrate committed the case to the court of Sessions. Charge against the accused:
3. Prima facie case under section 363/366 was made out against the accused. Charge under Section 363/366 was framed upon the accused to which he pleaded not guilty and claimed trial. Earlier in this case SC No. 40/11 State Vs Prahlad @ Pahalad @Pappu Page No. 2 of 25 when the prosecutrix was examined on 21.02.2012 she made the allegations of rape against the accused. Hence, the charge was amended vide orders dated 21.02.2012 by my Ld. Predecessor court and charge under section 376 IPC was added.
Witnesses Examined:
4. In support of its case, prosecution has examined twelve witnesses in all. The brief summary of the deposition of the prosecution witnesses is as under: Material Witnesses:
5. PW3 is Smt. Bina, complainant of the case. She deposed that on 25.09.2010 at about 7.30 AM her daughter 'X' had gone to her school for study but she did not return home from the school. When she was about to leave for her school the aunt (chachi) of the accused Prahlad namely Roshni came to her house and told her that her daughter had not attended the school and that she should find out the reason. Thereafter she went to school where she was told that Shivani did not reach school. She also made efforts to locate her daughter at the houses of her relatives but she could not be located. Thereafter, aunt (chachi) of accused namely Roshni revealed that she should make a call to accused Prahlad and that her daughter is in his custody upon which she made a phone call to accused Prahlad but accused denied about the same. She suspected him and made a complaint to the police. On 26.09.2010 Smt. Amardeep from Dayanand Colony got connected her daughter on phone. Accordingly, she along with police reached at H.No. 134, Ground Floor, Dayanand Colony where Smt. Amardeep told them that her daughter was found weeping at SC No. 40/11 State Vs Prahlad @ Pahalad @Pappu Page No. 3 of 25 Pragati Maidan by sister namely Kuldeep of Smt. Amardeep so she brought her to their home. From Dayanand colony they brought 'X' to police station. The police got her daughter medically examined and handed over her daughter to her. IO recorded her statement. She stated that her daughter 'X' was very scared and intimidated and after about 23 days she told her about the incident of rape being committed by the accused upon her twice. She took her daughter to police station and thereafter statement of her daughter was got recorded by the police.
6. PW4 is prosecutrix herself who deposed that in the year 2010 she was studying in 5 th class. On 25.09.2010 when she was going to her school accused asked her to sit on his bike on the pretext of leaving her to her school. She refused but on his insisting she sat on the bike. Accused took her to a bus and left bike there. Accused took her by bus and thereafter changed another bus and took her to the house of his sister in law(bhabi). Accused asked her to marry him which she refused. Thereafter, accused committed rape upon the prosecutrix, intimidated her not to reveal anybody about the rape otherwise he will kill her. Accused left her at his sister in laws house and went away. She cried a lot but the accused did not hear. Thereafter, bhabi of accused brought her and left her at Pragati Maidan and gave her Rs. 25/. When she was weeping at Pragati Maidan, one lady met her and she narrated the entire story who took her to her house from where she ('X') made a phone call to her mother. Her mother along with police personnel came there and took her to AIIMS Hospital where she was medically examined and her undergarments were taken by the doctor. Her statement Ex.PW1/B was SC No. 40/11 State Vs Prahlad @ Pahalad @Pappu Page No. 4 of 25 also got recorded before the judge. She stated that she had not told about the rape to the said judge because the accused intimidated her to get her brothers killed and accused had even sent some persons/boys to kill her brother, even till date the said persons came to their place and threatened her brothers due to which her brother are not able to attend their duty/work. Her statement was recorded by the IO and accused was identified by the witness in the court. Case property was shown to the witness and was correctly identified by her.
7. PW12 is SI Bhagwan Sahai, Investigating officer who deposed that he recorded statement of complainant, recovered the proosecutrix and got recorded her statement, arrested the accused, got prosecutrix and accused medically examined, collected the age proof of prosecutrix, sent the exhibits to FSL for examination, recorded the statement of witnesses, prepared the charge sheet and submitted the same in the court. Witness has duly proved the exhibits on record. Formal Witnesses:
8. PW1 Ms. Purva Sareen who had recorded the statement of prosecutrix under section 164 Cr.P.C and had duly proved Ex.PW1/A to Ex.PW1/D on record.
9. PW2 is Sh. Tej Singh who had brought the original pasting file containing the original application form along with the affidavit vide which the prosecutrix 'X' was admitted in the school. He stated that he has brought the admission and withdrawal register showing the admission of the prosecutrix 'X' at serial number 8550 and also showing her date of birth as 11.01.1998. As per the record the prosecutrix 'X' was admitted to SC No. 40/11 State Vs Prahlad @ Pahalad @Pappu Page No. 5 of 25 the school in 3rd class on 04.08.2008 and her date of birth is 11.01.1998. He had handed over a certificate Ex.PW2/A to this effect to the police.
10. PW6 is Lady constable Manju who deposed that she took the prosecutrix 'X' to AIIMS Hospital and got her medically examined and thereafter handed over the sealed pullandas sealed with the seal of hospital along with sample seal to IO which was handed over to her by the doctor. IO seized the same vide memo Ex.PW6/A and recorded her statement. After medical examination, prosecutrix was handed over to her mother Ms. Beena.
11. PW7 is Constable Gopal who deposed that he along with IO reached at F3/453, Sangam Vihar where accused Prahlad met them. IO interrogated the accused and arrested vide memo Ex.PW7/A, conducted his personal search memo Ex.PW7/B. They took the accused to AIIMS Hospital and got conducted his medically examination and thereafter IO seized the four pullandas handed over by the doctor to him vide memo Ex.PW7/C. IO recorded his statement thereafter. Witness has correctly identified the accused in the court.
12. PW8 is HC Subhash who deposed that he was posted as MHC(M) at PS Sangam Vihar. On 26.09.2010 SI Bhagwan Sahney, IO had deposited two pullandas sealed with the seal of hospital along with sample seal in the Malkhana and an entry was made by him in register no.19 at serial no. 3818 and photocopy of the same is Ex.PW8/A. On 06.10.2010 IO again deposited three pullandas and one envelope duly sealed with the seal of hospital along with sample seal in the Malkhana an entry was duly made by him in register no. 19 at serial number 3831 SC No. 40/11 State Vs Prahlad @ Pahalad @Pappu Page No. 6 of 25 and photocopy of the same is Ex.PW8/B. On 29.11.2010 as the per the instructions of IO he handed over 5 sealed pullandas, one sealed envelope and sample seal to Ct. Vikram vide RC No. 219/21/10 who deposited the same in FSL, Rohini. The endorsement to this effect was made by him at point 'X' on Ex.PW8/A. As per record, on 21.07.2011 six sealed parcels along with FSL report were received in the malkhana throught Ct. Karamvir regarding which the endorsement was made by the concerned MHC(M).
13. PW9 is SI Bharat Singh who deposed that on 25.09.2010 upon receipt of rukka Mark X through SI Bhagwan Sahay and he recorded formal FIR, the computerized print out of the FIR record is Ex.PW9/A. After the registration of the case, he handed over the rukka and copy of FIR back to Ct. Gopal who took the same to SI Bhagwan Sahay who was entrusted the investigation of the case. His endorsement on rukka is Ex.PW9/A.
14. PW10 is Ct. Vikram Yadav who deposed that on the instructions of the IO he collected the exhibits from MHC(M) and went to FSL, Rohini vide RC No. 219/21/10. After depositing the same in FSL, he obtained the receipt for obtaining and returned to police station and handed over same to MHC(M). Case property was not tempered with so long the same remained in his possession.
Medical Witnesses:
15. PW5 is Dr. Kamlesh Kumar who had medically examined the patient/accused and prepared the detailed MLC Ex.PW5/A and on examination opined that there is nothing to suggest that the SC No. 40/11 State Vs Prahlad @ Pahalad @Pappu Page No. 7 of 25 patient/accused was incapable of performing sexual intercourse under normal circumstances. He stated that he collected the blood in gauze, penile swab, control swab and the underwear of the patient along with sample seal and separately sealed and handed over to police.
16. PW11 is Dr. Praveen Kumar who deposed that on 26.09.2010 at about 4.20 PM prosecutrix 'X' was brought to casualty of Department of Obstetrics and Gynaecology by L/Ct. Manju. He medically examined the prosecutrix and prepared detailed MLC Ex.PW11/A. Upon examination he found fresh tear in fourchette and multiple tear in hymen which shows that hymen of prosecutrix was ruptured. He notice scratch marks present on right breast and on right hypoconium which was reddish in colour. He collected undergarments, three slides of vaginal smear sealed with seal of hospital and handed over to the police along with sample seal.
Statement and Defence of accused :
17. Statement of accused under Section 313 Cr.P.C was recorded wherein the accused denied the case of the prosecution and stated that it is a false case made by the complainant. Accused has stated that infact he had taken a loan of Rs. 10,000/ from the mother of prosecutrix which he could not repay due to which he has been falsely implicated in this case. He had gone to the site of his work at Mega Metro Mall at Ghaziabad at around 8.30 AM. Police rang him up at around 1.30 PM and called him. He reached his home and made inquiries from him and thereafter he was left. After about 10 days he was picked up by police at around 11.30 PM in the night and falsely implicated in this case. Accused further stated that SC No. 40/11 State Vs Prahlad @ Pahalad @Pappu Page No. 8 of 25 he wish to lead defence evidence and examined two witnesses. First witnesss DW1 is Sh. Vinod Kumar who deposed that on 25.09.2010 he was present at his work at site along with accused at Ghaziabad. At about 1 PM had had lunch with accused and after 510 minutes the accused received a telephonic call from his house regarding arrival of some police officials at his residence and he left the site after giving some instructions regarding work. Second is DW2 Ms. Anita Gupta who deposed that on 18.11.2010 as per the record maintained by her one lady namely Beena had come for attestation of an affidavit. Attestation on the affidavit Ex.DW2/A is identified by the witness. The consequential entry in her register showing the factum of attestation of an affidavit by Beena duly signed by her is also produced by her in the court. The extract of the relevant pages of the register is Ex.DW2/B.
18. I have heard the Ld. Defence counsel for the accused and Ld. APP for state and have carefully perused the record. Arguments of Ld. APP for state:
19. It is argued by the Ld. APP for the state that as per the school record the prosecutrix is around 12 ½ years of age. It is stated that accused is married person having four kids and he had no occasion to take the prosecutrix to the house of his sister in law and leave there. It is stated that the MLC of the accused was made after 10 days of the incident. Hence, the same cannot reflect the injuries on his person. It is also stated that prosecutrix has given sufficient explanation as to why she could not explain about the rape prior to the incident. It is also stated that MLC of the prosecutrix shows multiple injuries on her person which are SC No. 40/11 State Vs Prahlad @ Pahalad @Pappu Page No. 9 of 25 suggestive of rape. It is also stated that due to intimidation by the accused to kill her brothers the prosecutrix could not complain about the rape and could not speak about the truth before the magistrate or before the doctor. Hence, it is prayed that the accused be convicted for the offence. Arguments of Ld. Defence Counsel for accused:
20. It is argued by the counsel for accused that in the present case FIR was registered on 25.09.2010 under section 363/366 IPC. The girl was recovered on 26.09.2010 however after 2 years she made the allegations of rape due to which charge was amended. It is stated that there are contradictions in the statement of the prosecutrix as recorded under section 161 Cr.P.C and 164 Cr.P.C with regard to the conveyance by which the accused had taken her as in one statement she speaks about auto and in another she speaks about bike. It is stated that in the MLC she has given new history of kidnapping by three persons. It is stated that as per the cross examination of IO he had not investigated the case against three persons as no such incident had taken place. This shows that prosecutrix was making wavering statement time and again. It is stated that the prosecution has not made Smt. Amardeep as a witness in this case as she had found the prosecutrix weeping at Pragati Maidan and thereafter informed her parents. It is stated that there cannot be any kidnapping in the Bus because she could have raised alarm. It is also stated that in the MLC of the accused no injuries were found which falsify the statement of the complainant. It is also stated that exhibits were sent for FSL after 10 days and cannot give any conclusive proof of the connection with the accused with the offence. It is also stated that SC No. 40/11 State Vs Prahlad @ Pahalad @Pappu Page No. 10 of 25 during the period of 1 ½ / 2 years the prosecutrix had improved upon her statement thereby levelling the allegations of rape against the accused. It is stated that the accused has taken loan from the mother of the mother of the prosecutrix and on non refund of the loan amount, the accused has been falsely implicated by the mother of the prosecutrix. It is stated that as per the statement of the mother of the prosecutrix she came to know about the incident after about 23 days. Then why she did not report about the rape to the police or to the Magistrate. Hence, it is prayed that this is a ground for acquittal of the accused.
Conclusion:
21. Before appreciating the facts of this case, it is necessary to know the ingredients of the offences.
22. For the offence under section 363 of IPC, the prosecution has to prove the ingredients of the offence as mentioned in section 361 of IPC i.e.:
i) taking or enticing a minor girl under 18 years of age,
ii) Out of the keeping of lawful guardian of such minor,
iii) without their consent.
23. For proving the offence under section 366 IPC, prosecution has to prove essential ingredients of section 366 of IPC are :
(a) A person kidnaps or abducts any woman.
(b) The act is done
(i) with intent that she may be compelled to marry any person against her will, or
(ii) knowing it to be likely that she will be so compelled, or SC No. 40/11 State Vs Prahlad @ Pahalad @Pappu Page No. 11 of 25
(iii) in order that she may be forced or seduced to illicit intercourse, or
(iv) knowing it to be likely that she will be so forced or seduced.
24. Section 375 Rape provides: " A man is said to commit "rape" who, except in the case hereinafter excepted, has sexual intercourse with a woman under circumstances falling under any of the six following descriptions: First Against her will.
Secondly Without her consent.
Thirdly With her consent, when her consent has been obtained by putting her or any person in whom she is interested in fear of death or of hurt.
Fourthly With her consent, when the man knows that he is not her husband, and that her consent is given because she believes that he is another man to whom she is or believes herself to be lawfully married.
Fifthly With her consent, when, at the time of giving such consent, by reason of unsoundness of mind or intoxication or the administration by him personally or through another of any stupefying or unwholesome substance, she is unable to understand the nature and consequences of that to which she gives consent.
Sixthly With or without her consent, when she under sixteen years of age.
Explanation Penetration is sufficient to constitute the sexual SC No. 40/11 State Vs Prahlad @ Pahalad @Pappu Page No. 12 of 25 intercourse necessary to the offence of rape.
Exception Sexual intercourse by a man with his own wife, the wife not being under fifteen years of age, is not rape.
25. "Rape" is the act of physically forcing a woman to have sexual intercourse: an act of sexual intercourse that is forced upon a woman against her will. "Statutory rape" is a sexual intercourse with a girl under the age of consent, which age varies in different States from ten to eighteen years.
26. The offence of rape in its simplest term is 'the ravishment of a woman, without her consent, by force, fear or fraud', or as 'the carnal knowledge of a woman by force against her will? 'Rape' or 'Raptus' is when a man hath carnal knowledge of a woman by force and against her will (Co. lett. 123b); or as expressed more fully, 'rape' is the carnal knowledge of any woman, above the age of particular years, against her will; or of a woman child, under that age, with or against her will. Section 375 IPC defines rape. This Section requires the following essentials:
1. Sexual intercourse by a man with woman.
2. The sexual intercourse must be under circumstances falling under any of the six clauses in Section 375 IPC. The sexual intercourse must be under circumstances falling under any of the six clauses in Section 375 IPC.
27. In MANU/SC/7825/2008 Moti Lal vs. State of M.P., the Apex Court had observed that : "a rapist not only violates the victim's privacy and personal integrity, but inevitably causes serious SC No. 40/11 State Vs Prahlad @ Pahalad @Pappu Page No. 13 of 25 psychological as well as physical harm in the process. Rape is not merely a physical assault it is often destructive of the whole personality of the victim. A murderer destroys the physical body of his victim, a rapist degrades the very soul of the helpless female.
The court, therefore, shoulders a great responsibility while trying an accused on charges of rape. They must deal with such cases with utmost sensitivity. The Courts should examine the broader probabilities of a case and not get swayed by minor contradictions or insignificant discrepancies in the statement of the prosecutrix, which are not of a fatal nature, to throw out an otherwise reliable prosecution case. "
28. To prove the allegations of forcible rape and kidnapping the material witness is PW4 prosecutrix 'X'. The court, while evaluating the facts of a case, is supposed to form an opinion about the credibility of the witnesses examined in a case. The judge has to form his own estimate of the evidence produced before him and to articulate an opinion on the credibility of the witnesses. For the purpose of assessing the credibility, the court has to consider the evidence of a witness to find out as to how he has fared in the cross examination and what impression is created by his evidence taken in the context of other facts of the case. Law recognizes following ways in which evidence of a witness can be termed unreliable: SC No. 40/11 State Vs Prahlad @ Pahalad @Pappu Page No. 14 of 25
a) the witness's statement is inherently improbable or contrary to the course of nature,
b) his deposition contains mutually contradictory or inconsistent passage,
c) he is found to be bitter enemy of the opposite party,
d) he is found not to be a man of veracity,
e) he is found to have been bribed or accepted any other corrupt inducement to give evidence and
f) his demeanor, while under examination, is found abnormal and unsatisfactory.
29. It is for the court to consider in each case whether as a result of cross examination the witness stands discredited or can still be believed in regard to any party of his testimony . In appropriate cases, the court can rely upon a part of the testimony of a witness if the said deposition is found to be credit worthy. The law even recognizes to rely upon the part of the testimony of a hostile witness if the same inspires confidence. A part of the testimony of a witness can be incredible but the other part can be credible on a careful scrutiny and that portion of the evidence which is consistent with the case of the prosecution or the defence can be relied upon if the testimony is found to be credible.
30. The entire foundation to bring home the charge of rape rests on the statement of the prosecutrix who is just aged about 1415 years. It needs no elaboration that a conviction can be based on the uncorroborated evidence of the prosecutrix if the same inspires confidence. It will be useful to refer to the observations of Apex Court in the case titled as SC No. 40/11 State Vs Prahlad @ Pahalad @Pappu Page No. 15 of 25 Radhu Vs State of Madhya Pradesh 2007, Crl. Law Journal 4704 wherein Hon'ble Supreme court has held that: " It is now well settled that a finding of guilt in a case of rape, can be based on the uncorroborated evidence of the prosecutrix. The very nature of offence makes it difficult to get direct corroborating evidence. The evidence of the prosecutrix should not be rejected on the basis of minor discrepancies and contradictions. If the victim of rape states on oath that she was forcibly subjected to sexual intercourse, her statement will normally be accepted, even if it is uncorroborated, unless the material on record requires drawing of an inference that there was consent or that the entire incident was improbable or imaginary. Even if there is consent, the act will still be a 'rape', if the girl is under 16 years of age. It is also well settled that absence of injuries on the private parts of the victim will not by itself falsify the case of rape, nor construed as evidence of consent. Similarly, the opinion of a doctor that there was no evidence of any sexual intercourse or rape, may not be sufficient to disbelieve the accusation of rape by the victim. Bruises, abrasions and scratches on the victim especially on the forearms, writs, face, breast, thighs and back are indicative of struggle and will support the allegation SC No. 40/11 State Vs Prahlad @ Pahalad @Pappu Page No. 16 of 25 of sexual assault. The courts should, at the same time, bear in mind that false charges of rape are not uncommon. There have also been rare instances where a parent has persuaded a gullible or obedient daughter to make a false charge of a rape either to take revenge or extort money or to get rid of financial liability. Whether there was rape or not would depend ultimately on the facts and circumstances of each case.
Similar views are expressed in State of Punjab Vs. Gurmit Singh & Ors. AIR 1996 SC 1393, wherein honble the Supreme Court held that in cases involving sexual offences, harassment, molestation etc. the court is duty bound to deal with such cases with utmost sensitivity. It was held that: "The courts should examine the broader probabilities of a case and not get swayed by minor contradictions or insignificant discrepancies in the statement of the prosecutrix, which are not of a fatal nature, to throw out an otherwise reliable prosecution case. If evidence of the prosecutrix inspires confidence, it must be relied upon without seeking corroboration of her statement in material particulars. If for some reason the court finds it difficult to place implicit reliance on her testimony, it may look for evidence which may lend SC No. 40/11 State Vs Prahlad @ Pahalad @Pappu Page No. 17 of 25 assurance to her testimony, short of corroboration required in the case of an accomplice. The testimony of the prosecutrix must be appreciated in the background of the entire case and the trial court must be alive to its responsibility and be sensitive while dealing with cases involving sexual molestations."
31. It is equally well settled that if satisfied that the testimony of the child witness is a voluntary expression of what transpired and is an accurate impression of the same, no corroboration of the testimony is required. The Supreme Court has repeatedly ruled that there is no rule of practice that the evidence of a child witness needs corroboration and stated that conviction can be based on it. It is only as a rule of caution and prudence that the court may require that it would be desirable to have corroboration from other dependable evidence. (Ref : Dattu Ramrao Sakhare & Ors. vs. State of Maharashtra MANU/SC/1185/1997 : (1997) 5 SCC 341; Suryanarayana vs. State of Karnataka MANU/SC/0001/2001 :
2001 Cri.L.J. 705).
32. In the present case the incident of kidnapping pertains to 25.09.2010. The prosecutrix was recovered on 26.09.2010 and on 27.09.2010 her statement was recorded by the magistrate under section 164 Cr.P.C. It is correct that in her statement made to the magistrate she has not deposed about the factum of rape being committed upon her by the accused however she has deposed specifically that accused had taken her on the pretext that he will take her for an excursion. She has also stated that accused is staying in her neighbourhood and keeping bad eye SC No. 40/11 State Vs Prahlad @ Pahalad @Pappu Page No. 18 of 25 on her and he is having four kids. On his asking she went with the accused firstly in an auto and then on the way they changed two buses and thereafter at Tigri Village he left her at the house of his sister in law and his sister in law had left her at Pragatimaidan where she was weeping when one lady Amardeep took her to her house and made phone call to her parents. The parents of the prosecutrix along with family members of the prosecutrix came and she was recovered.
33. It is correct that in her statement recorded under section 164 Cr.P.C or given to the police, the prosecutrix has not made the statement that at the house of her Bhabi the accused had committed forcible rape upon her twice and for the first time in the court she has narrated the factum of rape being committed by the accused at the house of his Bhabi two times. She has sufficiently explained in her statement before the court as to why she did not disclose about the rape to the Magistrate in her statement under section 164 Cr.P.C ans stated that she had not told about the rape to the judge sahab as the accused had intimidated her to get her brothers killed and even sent some persons/boys to kill her brothers and even till date the said persons come to their house, threaten her brothers due to which her brothers are not able to attend their duty/work.
She has denied the suggestion that the accused did not commit rape upon her.
34. Though the prosecutrix had not spoken about the rape in her statements to the police or to the Magistrate earlier but the factum of rape upon the prosecutrix is also supported by the medical examination of the prosecutrix which was conducted on the very day of her recovery wherein SC No. 40/11 State Vs Prahlad @ Pahalad @Pappu Page No. 19 of 25 several scratch mark injuries were found on her person and there was fresh tear in fourchette and multiple tears in hymen. Hence, the testimony of the prosecutrix on the point of rape is also supported by her MLC. Nothing adverse came out in the cross examination of PW1. The testimony of the prosecutrix, with relation to the incident of rape is reassuring as she has been consistent throughout in describing what the accused did to her. Her description of the act of rape is accurate and narrated with the understanding of a 1415 year old girl child. It is not spoken of with the sophistication of an adult, and from this one can be reassured that the child has not been coached. The submission of Ld. counsel for the accused that the testimony of the prosecutrix is not reliable since she could not speak and depose in her statement under section 164 of Cr.P.C is insignificant since before the court the prosecutrix has identified the accused as well as narrated the incident in clear terms.
35. If the prosecutrix was not raped on the said day there was no occasion of scratch marks, multiple injuries on her person as well as on her private parts and there was no occasion for having fresh tears in hymen. Ld. counsel for accused has argued that these injuries can be self inflicted so as to falsely implicate the accused for the recovery of Rs. 10,000/ by the mother of the prosecutrix. However, as per the statement of PW11 Dr. Praveen Kumar there were injuries on the person of the prosecutrix which indicates that struggle took place prior to the sexual assault. In view of this statement of PW11 Dr. Praveen Kumar the submission of the counsel for the accused does not appear convincing.
SC No. 40/11 State Vs Prahlad @ Pahalad @Pappu Page No. 20 of 25
36. As per the defence of the accused he had taken a loan of Rs. 10,000/ from the mother of the prosecutrix which he could not repay due to which one day when he had gone to the site of his work at Mega Metro Mall the police rang him up at around 1.30 PM and called him. The police made inquiries from him and thereafter left however, after about 10 days he was picked up by the police at 11.30 PM in the night and falsely implicated him in this case. In his defence the accused has examined one of his fellow worker who was working at his site on 25.09.2010. However, this witness has not produced any documents to show that he was employed with the accused on 25.09.2010 and was working at Ghaziabad at the same site. He has also deposed in his cross examination that he did not meet the accused so long the prosecutrix remained with the accused nor he tried to apprised the police when he came to know about the arrest of the accused. The accused has also examined one advocate Ms. Anita Gupta who had proved the attestation of affidavit sworn by one Beena before her. The said affidavit nowhere helps the accused as affidavit speaks about some compromise but no copy of the said compromise is attached with the file. Further, said affidavit was verified on 18.11.2010 i.e. after the registration of this FIR and cannot have any bearing on the merits of this case.
37. The testimony of the prosecutrix is duly corroborated by her medical evidence on the point of rape and the explanation for not reporting the factum of rape earlier due to intimidation are also convincing to the court. But once the factum of rape is reported to the court by the prosecutrix which is duly corroborated by the medical SC No. 40/11 State Vs Prahlad @ Pahalad @Pappu Page No. 21 of 25 evidence and when the accused could not prove his defence by leading sufficient evidence, the false implication is also ruled out at the hands of the prosecutrix.
38. Ld. Counsel for accused has also advanced arguments that if the prosecutrix was kidnapped she could have raised alarm in the auto or buses. So far as these arguments are concerned, the prosecutrix has explained in her statement under section 164 Cr.P.C that the accused was residing in her neighbourhood and he is father of four kids and he took her on the way from school to his village at Tigri on the pretext that he will take her for excursion. As the accused was already known to her , the prosecutrix believed his version and accompanied him and for this reason no suspicion arose in her mind nor she could have notice the ill intention of the accused so as to raise alarm on the way. The accused is admittedly a married man of 3540 years and he was a father of four kids. On the other hand, the prosecutrix is a small child studying in 5 th class at that time. As per the prosecution case she was aged around 1415 years at that time. The prosecutrix and her mother both have stated her age to be 14 15 years at the time of incident. Though the school record is based upon the affidavit and not on any documentary birth certificate of the prosecutrix but in the examination the accused has not challenged the date of birth of the prosecutrix nor had cross examined the mother of the prosecutrix qua her age . The prosecutrix had stated to the Magistrate that she was studying in 5th class at that time and as such, from their unchallenged testimony the prosecution has proved that the prosecutrix was around 1415 years of age and was a minor. There was a huge gap of SC No. 40/11 State Vs Prahlad @ Pahalad @Pappu Page No. 22 of 25 age between the accused and the prosecutrix. The prosecutrix had consistently made statements to the police or to the Magistrate that she was taken by the accused on the pretext of taking her to his village and there is no consistency with regard to the taking of the prosecutrix by the accused is concerned. The version of the prosecutrix clearly proves that she was taken out of the keeping lawful guardianship by the accused and the testimony of the prosecutrix on this point remains consistent, convincing and trustworthy throughout. Her testimony could not be shattered during her cross examination. The conduct of the accused in taking a minor child out of the lawful guardianship of her parents to a far off place speaks volume about the illicit intention of the accused. The testimony of the prosecutrix that it was accused who took her on the pretext, clearly explain as to why she did not raised any alarm when the incident had happened. The prosecutrix was a minor child studying in 5th class and the court can well appreciate the intelligence level of the said child who was not in a position to understand the consequences of her accompanying the accused and could not have raised suspicion upon the accused.
39. So far as arguments of Ld. Defence counsel that the prosecutrix has given a new statement to the doctor that she was kidnapped by three persons is concerned, prosecutrix has also explained the reason for not giving truth to the doctor stating that she was intimidated by the accused to kill her brothers.
40. Ld. Counsel for accused has also argued that the prosecution has not made PW Amardeep as a witness in this case which shows that SC No. 40/11 State Vs Prahlad @ Pahalad @Pappu Page No. 23 of 25 the prosecutrix was not recovered at the given place and also shows the falsity of the prosecution story. To this effect, the statement of the IO/PW12 is relevant who has stated that he did not record the statement of that lady Amardeep as she refused to make her statement. This sufficiently explains the non inclusion of Amardeep in the list of witnesses. Even otherwise, the non inclusion is not a ground to disbelieve the testimony of the prosecutrix when the same inspires confidence.
41. Though the FSL result in this case is not conclusive but that is only a corroborative piece of evidence. The FSL may be inconclusive due to various reasons for example the samples are not drawn proprely or putrified after long gap etc but the inconclusive report is no ground to disbeleive the testimony of the prosecutrix if the same is convincing. The mother of the prosecutrix has also supported the version of the prosecutrix that she has disclosed about the factum of rape to her after about 23 days of the incident as well as the statement of the prosecutrix coupled with her medical evidence and the statement of her mother proves the factum of rape by the accused upon her and also sufficiently proves the explanation with regard to the non reporting of rape earlier.
42. Medical Evidence : The MLC of the accused proves that there was nothing to suggest that the accused was not capable of performing sexual intercourse in normal condition. The MLC is duly proved by Dr. PW5 Kamlesh Kumar. The FSL result is not conclusive since due to there examination after a long gap the samples are putrified. MLC of the prosecutrix also corroborates the factum of forcible rape upon her.
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43. Hence, in view of the above discussion, it is proved that accused had taken the prosecutrix out of the lawful guardianship of the parents of the prosecutrix and had also committed rape with her. Hence, the offence under section 363/366/376 IPC is proved against the accused. Hence, accused Prahlad is held guilty and convicted for the offence under section 363/366/376 IPC.
ANNOUNCED IN THE OPEN COURT ON 22.02.2014.
( RENU BHATNAGAR ) DESIGNATED JUDGE TADA/POTA/MCOCA ASJ SE01/NEW DELHI SC No. 40/11 State Vs Prahlad @ Pahalad @Pappu Page No. 25 of 25