Delhi District Court
State vs . Vikas on 28 November, 2015
1
FIR No. 357/12
PS - Mukharjee Nagar
IN THE COURT OF SH. MAHESH CHANDER GUPTA :
ADDITIONAL SESSIONS JUDGE : SPECIAL FAST TRACK
COURT : NORTH DISTRICT : ROHINI : DELHI
SESSIONS CASE NO. : 216/13
Unique ID No. : 02404R0039062013
State Vs. Vikas
S/o Sh. Jai Parkash
R/o Village Swaroop Garh,
PS - Dadri, District - Bhiwani,
Haryana.
FIR No. : 357/12
Police Station : Mukharjee Nagar
Under Section : 376/511 IPC
Date of committal to session Court : 08/03/2013
Date on which judgment reserved : 17/11/2015
Date on which judgment announced : 24/11/2015
J U D G M E N T
1 of 115 2 FIR No. 357/12 PS - Mukharjee Nagar
1. Briefly stated the case of the prosecution as unfolded by the report under section 173 Cr.P.C. is as under : That on 26/11/2012, on receipt of DD No. 42 A PS Mukharjee Nagar, SI Raj Bala reached at House No. 266, 3rd Floor, East Bhai Parmanand Colony, Delhi where ASI Madan Lal, Constable Sajjan, Constable Sandeep, W/Constable Anju, victim (name withheld being a case u/s 376 IPC) with her husband met. The victim/prosecutrix W/o Azizul Hasna, R/o Village Chilakali, PS Teh, PO Kudaigasi, District Nadia, present address Jhuggi No. 153C, Ram Basti, Gandhi Vihar, Delhi, age 25 years made the statement which is to effect that, she lives with her family at the above address and does the work of cooking food in the houses. For the last about ten days she had taken the work of cooking food for three boys living in House No. 266, East Bhai Parmanand Colony, 3rd Floor and at this floor three boys namely Vikas, Dipender and Anand lives. Today, on 26/11/2012 at about 8.30 PM she went there and the boy named Vikas was present alone in that floor at that time. After preparing the food she was cleaning the utensils then Vikas came to her and started doing absurd talks (ulti sidhi batae karne 2 of 115 3 FIR No. 357/12 PS - Mukharjee Nagar laga) and he bolted the room (Kamre ki kundi laga di) and after catching hold her hand took her in a room adjacent to the Balcony and laid her on a mattress lying on the floor on which a bed sheet was spread (Jiske upar chadar bichhi thi) and lowered her worn pajami and salwar (meri pehni hui pajami aur salwar ko niche kar diya) and lifted her shirt (Kamiz ko upar kar diya) and attempting to commit rape upon her (marae saath rape karne ki koshish karnae laga) and when she protested he closed her mouth and during this he discharged which also fell on her clothes (essee dauran uska discharge ho gaya jo marea kapdo par bhee gir gaya) and somehow she got released herself and after arranging her clothes and after opening the bolt fled outside and went to the house of her Muhbole Bhai Amitabh who lives in Bhai Parmanand Colony and told him all about the incident. Partner of Bhaiya Amitabh made a call to the Police and Police came. Vikas has attempted to commit rape upon her. Legal action be taken against him. The statement was made in the presence of NGO Counselor Rita. Medical examination of the prosecutrix was got conducted from BJRM Hospital Vide MLC No. 50874/12 and the sealed exhibits handed over by the doctor after her medical examination were taken into Police possession. On the basis of 3 of 115 4 FIR No. 357/12 PS - Mukharjee Nagar the statement, from the inspection of the MLC finding that offence u/s 376/511 IPC appeared to have been committed, the case was got registered. Investigation was proceeded with by SI Raj Bala. Crime team was called at the sport and the spot was got inspected from the Crime Team. Site Plan was prepared. On the identification of the prosecutrix, accused Vikas was arrested and his disclosure statement was recorded. His medical examination was got conducted from BJRM Hospital vide MLC No. 50876/12 and the sealed exhibits handed over by the doctor after his medical examination were taken into Police possession. PCR Form was collected. Statements of the witnesses were recorded. The sealed pullindas were sent to the FSL. On 15/12/2012 accused Vikas was released on anticipatory bail by the Sessions Court. Tenant verification form was collected.
Upon completion of the necessary further investigation, challan for the offence u/s 376/511 IPC was prepared against accused Vikas and was sent to the Court for trial.
4 of 115 5 FIR No. 357/12 PS - Mukharjee Nagar
2. Since the offence u/s 376/511 IPC is exclusively triable by the Court of Session, therefore, after compliance of the provisions of Section 207 Cr.P.C., the case was committed to the Court of Session u/s 209 Cr.P.C.
3. Upon committal of the case to the Court of Session and after hearing on charge prima facie a case u/s 376/511 IPC was made out against accused Vikas. Charge was framed accordingly which was read over and explained to the accused to which he pleaded not guilty and claimed trial.
4. In support of its case prosecution has produced and examined 21 witnesses. PW1 Constable Vinod Kumar, PW2 HC Ranbir, PW3 Prosecutrix (name withheld), PW4 ASI Ram Samujh, PW5 Sh. Anand, PW6 Sh. Dipender Singh, PW7 Dr. Seema, Medical Officer, BJRM Hospital, Jahangir Puri, Delhi, PW8 - Constable Sujan Singh, PW9 - SI Naresh Pal, PW10 - Sh. Rajendra Kumar, PW11
- W/Constable Anju, PW12 - Constable Sandeep Kumar, PW13 - Sh. Devender Kumar, PW14 - Sh. Amitabh, PW15 - Sh. AzizUlHasan, 5 of 115 6 FIR No. 357/12 PS - Mukharjee Nagar PW16 Constable Parvinder, PW17 - Dr. Manisha Upadhaya, Senior Scientific Officer, FSL, Rohini, Delhi, PW18 W/Constable Anju, PW19
- SI Madan Lal, PW20 - Ms. Seema Nain, SSO (Biology), FSL, Rohini, Delhi and PW21 - SI Rajbala.
5. In brief the witnessography of the prosecution witnesses is as under : PW1 Constable Vinod Kumar, who deposed that on 30/11/2012, he was posted as Constable in PS Mukherji Nagar. On that day, on the instructions of IO, he took six sealed pullindas and two sample seals from the MHC(M) for depositing in FSL Rohini vide RC No. 98/21/12. He deposited the same in FSL, Rohini and thereafter deposited the acknowledgment receipt with the MHC(M). The sealed pullindas remained intact during his custody.
PW2 HC Ranbir is the MHC(M), who deposed that on 27/11/2012, he was posted as MHC(M) in PS Mukherji Nagar. On that day, SI Raj Bala deposited six pullindas alongwith two sample seals in the Malkhana. He made entry at Serial No. 3385 in Register No. 19. On 6 of 115 7 FIR No. 357/12 PS - Mukharjee Nagar 30/11/2012, on the instructions of IO, six sealed pullindas alongwith two sample seal were handed over to Constable Vinod for depositing in the FSL, Rohini vide RC No. 98/21/12. After depositing the same in FSL, he had deposited the acknowledgment receipt of the pullinda with him. He has brought the Register No. 19 and 21. The copy of the relevant entry of Register No. 19 is Ex. PW2/A. The copy of relevant entry of Register No. 21 is Ex. PW2/B. Copy of the acknowledgment receipt is Ex. PW2/C (OSR). Sealed pullindas remained intact during his custody.
PW3 - Prosecutrix is the victim who deposed some facts regarding the incident and proved her statement made to police Ex. PW3/A bearing her signature at pointA. She resiled from her previous statement and was also crossexamined by the Learned Addl. PP for the State.
PW4 ASI Ram Samujh is the Duty Officer, who deposed that on 27/11/2012, he was posted as Duty Officer in PS Mukherji Nagar and was on duty from 1:00 a.m. (midnight) to 9:00 a.m. On that day, at about 2:30 a.m., he received a rukka from Constable Sandeep 7 of 115 8 FIR No. 357/12 PS - Mukharjee Nagar which was sent by SI Raj Bala. On the basis of which and on his instructions present FIR No. 357/12 u/s 376/511 IPC was registered. After registration of FIR, he handed over the copy of FIR and original rukka to Constable Sandeep for handing over to SI Raj Bala. He has brought the original FIR Register, copy of FIR is Ex. PW4/A, bearing his signature at point 'A' (OSR). He made endorsement on the rukka which is Ex. PW4/B, bearing his signature at point 'A'.
PW5 Sh. Anand, who deposed that he is working as Constable in Delhi Police and at present posted in PS Chhawla. On 26/11/2012, he was residing as a tenant in House No. 266, Parmanand Colony, Delhi alongwith Dipender, Yogender & Vikas. They had taken the above said house on rent on 03/11/2012. They had employed a maid/prosecutrix (name withheld) in their room for Rs. 2,000/ per month. She used to cook their food and used to do other house hold work. On 26/11/2012, he had left his room at about 6:00/7:00 p.m. for his duty. Dipender had gone to discuss some matter with his friend at Mukherji Nagar as he was preparing for SSC Exam. Yogender was ill and he had gone to his house on 1718/11/2012. Accused Vikas, present 8 of 115 9 FIR No. 357/12 PS - Mukharjee Nagar in the Court was at the room. On next day, in the morning when he (PW5) came in the room, the Police had came there and a quarrel has taken place between Vikas and prosecutrix (name withheld) and accused Vikas was arrested. There was a dispute regarding money between them. Police made inquiries from him (PW5). He resiled from his previous statement and was also crossexamined by the Learned Addl. PP for the State.
PW6 Sh. Dipender Singh, who deposed that he is a student. On 26/11/2012, he was residing as a tenant in House No. 266, Parmanand Colony, Delhi alongwith Anand, Yogender & Vikas. They had taken the above said house on rent on 03/11/2012. They had employed a maid/prosecutrix (name withheld) in their room for Rs. 2000/ per month. She used to cook their food and used to do other house hold work. On 26/11/2012, Anand had left the room at about 6:00/7:00 p.m. for his duty. He had gone to discuss some matter with his friend at Mukherji Nagar as he was preparing for SSC Exam. Yogender was ill and he had gone to his house on 1718/11/2012. Accused Vikas, present in the Court was at the room. On the same day, at about 9 of 115 10 FIR No. 357/12 PS - Mukharjee Nagar 10:00/10:30 p.m. when he came on the room Vikas told him that prosecutrix (name withheld) is quarreling on the payment/salary. Vikas further told him that he had given Rs. 2000/ to her but she is demanding Rs. 3,000/. When they were eating food, Police came there and took the Vikas in the Police Station. On the next day, he had gone to his house. He resiled from her previous statement and was also crossexamined by the Learned Addl. PP for the State.
PW7 Dr. Seema, Medical Officer, BJRM Hospital, Jahangir Puri, Delhi, who deposed that she has been deputed in this case by the MS of the Hospital to depose before the Court. She has seen MLC No. 50876 of Vikas S/o Jai Prakash, Age 23 Years, male who was brought to Hospital on 27/11/2012 at 3:00 a.m. for medical examination being accused of rape. The patient was initially examined by Dr. Gagan, J.R. and on local examination no external fresh injury seen and thereafter patient was referred to S.R. Surgery where patient was examined by Dr. Jasneet and as per MLC, he opined that there is nothing to suggest that patient Vikas is not capable of performing sexual intercourse. She has also seen the MLC No. 50874 of prosecutrix (name withheld) W/o 10 of 115 11 FIR No. 357/12 PS - Mukharjee Nagar Asisul, Age 25 years, female who was brought to Hospital on 27/11/2012 at 1:00 a.m. with the alleged history of sexual assault. The patient was initially examined by Dr. Santosh, J.R. and on local examination no fresh injury were seen. Thereafter, patient was referred to S.R. Gynae whereupon patient was examined by Dr. Seema, S.R. Gynae and on per vagina examination : hymen torn, old tear, admits two finger easily. At present Dr. Gagan, Dr. Jasneet, Dr. Santosh and Dr. Seema, S.R. (Gynae) are not working in their Hospital and there present whereabouts are not known as per record. She is acquainted with their handwriting and signatures as she has seen them while writing and signing during the course of her duty. The MLC of Vikas is Ex. PW7/A, bearing signature of Dr. Gagan at point 'A' and of Dr. Jasneet at point 'B'. The MLC of prosecutrix (name withheld) is Ex. PW7/B, bearing the signature of Dr. Santosh at point 'A' and of Dr. Seema at point 'B'.
PW8 - Constable Sujan Singh, who deposed that on 26/11/2012, he was posted as Constable in PS Mukherji Nagar. On that day, ASI Madan Lal received DD No. 42A at about 10:15 p.m. and thereafter he (PW8) alongwith him reached at the spot i.e. House No. 11 of 115 12 FIR No. 357/12 PS - Mukharjee Nagar 396, 3rd Floor, Bhai Parmanand Colony where they met complainant/prosecutrix (name withheld) alongwith her husband and she told that Jor jabardasti has been committed upon her by a boy who is resident of H. No. 266, 3rd Floor East, Bhai Parmanand Colony. Thereafter, ASI Mandan Lal has called the lady Police officer and as per the order of SHO, madam SI Raj Bala alongwith Constable Anju and Constable Sandeep came at the spot in Govt. Vehicle at around 11:30 p.m. SI Raj Bala made inquiries from victim. Crime Team was called at the spot and crime team reached at the spot and inspected the spot and took the photographs. He alongwith ASI Madan Lal left at the spot and IO alongwith victim, her husband and W/Constable Anju went to BJRM Hospital for medical examination and after medical examination they came back at the spot alongwith NGO. Statement of victim/prosecutrix (name withheld) was recorded and IO prepared Tehrir and handed over the same to Constable Sandeep for getting the FIR registered. IO prepared the site plan. From the room of House No. 266, 3rd Floor, one bed sheet of green mehroon colour print and two packet of condom were seized vide memo Ex. PW3/B & Ex. PW8/A. Constable Sandeep came back at the spot and handed over to IO, copy of FIR and original rukka.
12 of 115 13 FIR No. 357/12 PS - Mukharjee Nagar Accused Vikas who was already apprehended by ASI Madan Lal was interrogated and arrested vide arrest memo Ex. PW3/C and his personal search was conducted. He alongwith IO took accused Vikas in BJRM Hospital where he was medically examined and after medical examination, Doctor handed over the sealed pullinda containing exhibits and the same were seized by the IO vide memo Ex. PW8/B, bearing his signature at point 'A'. Thereafter, they came back to PS and accused was sent to Police lockup. Case property was deposited in the Malkhana. Accused Vikas is present in the Court. He correctly identified one bed sheet of green mehroon colour print, which was seized from the spot as Ex. P1 and two packets of condom, which were seized from the spot as Ex. P2.
PW9 - SI Naresh Pal, who deposed that on 27/11/2012, he was posted as Incharge Mobile Crime Team, NorthWest Distt. On that day, after receiving the information, he alongwith Constable Parvinder photographer reached at the spot at House no. 266, IIIrd Floor, East Bhai Parmanand Colony and there at the instance of IO, he inspected the spot and Constable Parvinder took the photographs. He prepared Crime 13 of 115 14 FIR No. 357/12 PS - Mukharjee Nagar Report which is Ex. PW9/A, bearing his signature at point 'A'.
PW10 - Sh. Rajendra Kumar, who deposed that he is residing at the aforesaid address (D8, Rana Pratap Road, Adarsh Nagar, Delhi) alongwith his colleague Amitabh and he is working in RBI, Sansad Marg, Delhi as an Executive Intern. In the year, 2012, he was residing at Bhai Permanand Colony but he does not remember the flat number. Prosecutrix (name withheld) was working in their house for the last 56 months prior to the present incident and she used to cook their food. Date and month, he does not remember however, it was a winter season and about one year back in the night, she came to their residence and was weeping. They tried to calm her down. After giving her glass of water she was able to speak and she told them that a person had tried to do zor zabardasti with her, who was residing in the upper floor where his friend Rohtash was residing. Thereafter, he made a call at 100 Number. Police came to his house and tried to make inquiries from her but she was very much nervous and then Police asked them and then he told the Police the above stated facts. Thereafter, prosecutrix (name withheld) was taken by the Police. His statement was recorded by the 14 of 115 15 FIR No. 357/12 PS - Mukharjee Nagar Police.
PW11 - W/Constable Anju, who deposed that on 26/11/2012, she was posted at PCR and on that day her duty was at Channel No. 121 and her duty hours were from 8:00 p.m. to 8:00 a.m. At about 10:10 p.m., she received a message from mobile no. 9711940295. She recorded the message and sent the same to PS - Mukharjee Nagar. She has brought the computerized PCR Form. Same is Ex. PW11/A. PW12 - Constable Sandeep Kumar, who deposed that on 26/11/2012, he was posted at PS - Mukharjee Nagar. On that day, he alongwith SI Raj Bala reached at the spot where ASI Madan Lal and Constable Sujaan met them. W/Constable Anju also reached at the spot. From there, prosecutrix was taken to BJRM Hospital by Constable Anju and he in a Government vehicle which was being driven by him. Prosecutrix was medically examined and thereafter, they came back at the spot. IO handed over him a rukka for the registration of FIR. He went to PS and got registered the case and came back at the spot with the copy of FIR and original rukka and the same were handed over to IO.
15 of 115 16 FIR No. 357/12 PS - Mukharjee Nagar Accused Vikas who is present in the Court (correctly identified) was arrested and thereafter, he was sent BJRM Hospital in the custody of Constable Sujaan for his medical examination in a Government vehicle which was being driven by him. After the medical examination of the accused, they again reached at the spot. His statement was recorded by the IO in this regard.
PW13 - Sh. Devender Kumar is the Landlord, who deposed that he is working as a Teacher at Govt. Boys Sr. Sec. School. He is the owner of House No. 266, 3rd Floor, East Parmanand Colony. He had given his above said house on rent to Dipender, Anand and Yogender for Rs. 12,000/ per month through Broker. He has no knowledge if the boy namely Vikas was residing in the aforesaid house with the abovesaid boys. He has got conducted the tenant verification. He has brought the copy of the tenant verification form alongwith ID Proof, on which he took the receipt of the submissions of the tenant verification form. The copy of the same is Ex. PW13/A (OSR). Police made inquiries from him and recorded his statement.
16 of 115 17 FIR No. 357/12 PS - Mukharjee Nagar PW14 - Sh. Amitabh, who deposed that he is working in Reserve Bank of India in New Delhi. In November, 2012, he was residing at house No. 396, 3rd Floor, Bhai Parmanand Colony, Mukherji Nagar, Delhi. He knows prosecutrix (name withheld), she used to cook food at their room at 396, 3rd Floor, Bhai Parmanand Colony, Mukherji Nagar, Delhi. One boy Rajender was also residing with him at the above said address. On 26/11/2012 at around 10:00 p.m., prosecutrix (name withheld) came to them at their room in perturbed condition (Ghabrai hui). They offered her a chair and offered water. Thereafter, prosecutrix (name withheld) told them that the boy (Larka) who is residing on the upper floor of the house where Rohtash was residing had tried to do Jabardasti with her (Jo larka Rohtash ke upparwale floor mai rehta hai, usne uske sath jabardasti karne ki koshish ki). Thereafter, on the asking of prosecutrix (name withheld), they made a call to the Police from the mobile phone of Rajendra. Three boys were living in the upper floor of the house where Rohtash was residing, as was told by prosecutrix (name withheld).
PW15 - Sh. AzizUlHasan is the husband of the 17 of 115 18 FIR No. 357/12 PS - Mukharjee Nagar prosecutrix, who deposed that he is a Rickshaw Puller. He does not know date, month & year, however, it was about one year ago, he was present at his house at about 8:00/9:00 p.m., he had received a telephone call from the associates of Amitabh Bhaiya and called at the house of Amitabh Bhiya. He went there where he met the associates of Amitabh Bhaiya and they told him that, "where prosecutrix (name withheld) works in Parmanand Colony at house No. 266, there a dispute had taken place on money and for this they have called the Police". Thereafter, he went to House No. 266, Parmanand Colony, there he saw the Police Van found present. There the Police asked him as to who he is? He told Police that he is the husband of prosecutrix (name withheld). Then he wanted to go upper floor (upar jana chahta tha) of the said house, on which, Police told him not to go on the upper floor as there were already two Police official present. Thereafter, the two Police officials with a Larka (boy), with his wife/prosecutrix (name withheld) came down from the upper floor. He does not identify the said boy. The Police Official standing there while pointing to him told to the Police official who had come down from the upper floor that husband of prosecutrix (name withheld) had come. When he was in the process to sit in the 100 18 of 115 19 FIR No. 357/12 PS - Mukharjee Nagar number Police van as the others were also going to sit in the said Van at that time, Police told him that there is no need of him to go and asked him to sign on 24 papers (tumare jane ki jarurat nahi hai, tum doo char kagzo par sign kar do). Thereupon, he signed four papers and thereafter he was told by the Police to go to his house. He had no chance to talk to his wife/prosecutrix (name withheld). He resiled from his previous statement and was also crossexamined by the Learned Addl. PP for the State.
PW16 Constable Parvinder is the Photographer, who deposed that in the intervening night of 2627/11/2012, he was posted as Constable Photographer in Mobile Crime Team, NorthWest District. On that day, after receiving the information, he alongwith the mobile Crime Team Incharge SI Naresh reached at the spot i.e. 266, Third Floor, East Bhai Patmanand Colony where SI Naresh inspected the spot and he took the 10 photographs. He has brought the negatives of the photographs which are Ex. PW16/A1 to Ex. PW16/A10 and photographs are Ex. PW16/B1 to Ex. PW16/B10.
19 of 115 20 FIR No. 357/12 PS - Mukharjee Nagar PW17 - Dr. Manisha Upadhaya, Senior Scientific Officer, FSL, Rohini, Delhi, who proved the biological and serological reports Ex. PW17/A and Ex. PW17/B respectively bearing her signature at point 'A'.
PW18 W/Constable Anju, who deposed that on 27/11/2012, she was posted at PS Mukherji Nagar and his duty hours were from 5:00 p.m. to 1:00 a.m. as DD Writer. At 10:15 p.m. information was received vide DD No. 42A and was given to ASI Madan Lal for taking action. That call was regarding 'jor jabardasti' with the victim. ASI Madan Lal was informed accordingly and SI Raj Bala was also informed about the information. ASI Madan Lal also briefed SHO PS Mukherji Nagar about the facts. Official vehicle was called by the Duty officer as per instructions from the SHO and then she alongwith Constable Sandeep, driver of the ERV reached at the spot i.e H.No. 266, IIIrd Floor, Bhai Parmanand Colony, Delhi. At the spot ASI Madan Lal, Constable Sujjan and SI Raj Bala were found present. Victim/prosecutrix (name withheld) and her husband AzizulaHassan and Amitabh, (mauhubola bhai) brother by word of mouth, of victim and 20 of 115 21 FIR No. 357/12 PS - Mukharjee Nagar accused Vikas present in Court (correctly identified) were also present at the spot. SI Raj Bala made inquiries from the victim. Crime Team was also informed and called at the spot. Spot was got photographed and inspected by the Crime Team. ASI Madan Lal and Constable Sujjan remained at the spot with accused Vikas. She alongwith victim/prosecutrix (name withheld) and IO SI Raj Bala reached BJRM Hospital, Jahangir Puri and got the medical examination of the victim. After medical examination Doctor had handed over two sealed pullindas alongwith the sample seal of the Hospital to the IO and the same were seized by the IO vide memo now Ex. PW18/A bearing her signatures at Point 'A'. Thereafter, they all returned to the spot. Accused was sent for the medical examination. Rukka was prepared by the IO and was sent to the PS through Constable Sandeep for the registration of the FIR. Site plan was prepared. IO had seized the exhibits from the spot. One bed sheet in a cloth pullinda was sealed with the seal of 'RB' and was taken into possession vide memo already Ex. PW3/B bearing her signature at Point 'B'. IO had seized two packets of condoms from the spot vide memo already Ex. PW8/A. Constable Sandeep returned to the spot with the copy of FIR and rukka and returned the same to the IO. In the night 21 of 115 22 FIR No. 357/12 PS - Mukharjee Nagar accused Vikas was arrested vide arrest memo already Ex. PW3/C bearing her signature at Point 'B'. Personal search of accused was also conducted vide memo already Ex. PW3/D bearing her signature at Point 'B'. Disclosure statement of accused Vikas already Ex. PW3/E was recorded and the same is bearing her signature at Point 'B'. They returned to the Police Station with the accused and the accused was kept in the lockup. She correctly identified one bedsheet of greenmaroon colour print, which was seized from spot, as already Ex. P1 and two packets of condoms, which was seized from spot, as already Ex. P2 (Colly.).
PW19 - SI Madan Lal, who deposed that on 26/11/2012, he was posted as ASI at PS Mukharjee Nagar. On that day, he was on night emergency duty from 8:00 p.m. to 8:00 a.m. At about 10:15 p.m. on receipt of DD No. 42A, he alongwith Constable Sujan went to H. No. 396, in front of Bhai Parmanand Colony, where prosecutrix (name withheld) alongwith her husband Azizul and one other person Amitabh met him. Prosecutrix (name withheld) informed him that the person residing at the third floor of H. No. 266, Bhai Parmanand Colony, 22 of 115 23 FIR No. 357/12 PS - Mukharjee Nagar attempted to commit rape upon her. Then he took prosecutrix (name withheld) and her husband and Amitabh to third floor of H. No. 266, Bhai Parmanand Colony, where accused Vikas was found present. Prosecutrix (name withheld) identified accused Vikas by stating that he had attempted to commit rape upon her. He called a Lady Officer from PS Mukharjee Nagar and after sometime W/SI Raj Bala alongwith W/Constable Anju and Constable Sandeep came at the spot by govt. vehicle and Crime Team was also called. SI Raj Bala made inquiries from prosecutrix (name withheld). The Crime Team official reached at the spot and then SI Raj Bala alongwith Constable Anju and Constable Sandeep took the prosecutrix (name withheld) to BJRM Hospital, by govt. vehicle. The Crime Team officials inspected the spot and the spot was got photographed by him. After the inspection of the spot, Crime Team officials left the spot. SI Raj Bala alongwith Constable Anju, Constable Sandeep and prosecutrix (name withheld) returned to the spot from the Hospital after the medical examination of prosecutrix (name withheld). SI Raj Bala called the Counselor from NGO and the counseling of prosecutrix (name withheld) was got done. SI Raj Bala recorded the statement of prosecutrix (name withheld) and prepared 23 of 115 24 FIR No. 357/12 PS - Mukharjee Nagar tehrir. She handed over the Tehrir to Constable Sandeep and he was sent to PS for registration of FIR. SI Raj Bala prepared the site plan at the instance of prosecutrix (name withheld). There were two condoms (packed) which were lying on the bedsheet were lifted by IO from the bedsheet and same were taken into Police possession by IO vide seizure memo Ex. PW8/A bearing his signature at Point 'A'. Complainant (name withheld) pointed out towards the bedsheet that it is same on which accused Vikas had attempted to commit rape upon her. IO SI Raj Bala lifted the bedsheet which was spread over the mattress lying on the floor (farsh par gadde par bichi hoi chadar ko uthaya). IO SI Raj Bala prepared a cloth parcel of this bedsheet and sealed it with the seal of 'RB' and this parcel was taken into Police possession vide seizure memo Ex. PW3/B bearing his signature at Point 'C'. In the meantime, Constable Sandeep returned to the spot with copy of FIR and original rukka which he handed over the same to IO. SI Raj Bala arrested accused Vikas vide arrest memo and personal search memo already Ex. PW3/C & Ex. PW3/D bearing his signature at Points 'C'. IO interrogated accused Vikas, who gave a disclosure statement Ex. PW3/E bearing his signature at Point 'C'. Thereafter, IO alongwith Constable Sujan took accused 24 of 115 25 FIR No. 357/12 PS - Mukharjee Nagar Vikas to Hospital for conducting his medical examination by govt. vehicle. After sometime IO SI Raj Bala alongwith Constable Sujan brought accused Vikas to the spot from the Hospital. IO recorded the supplementary statement of prosecutrix (name withheld) and recorded the statement of Azizul Halsana. Then accused Vikas and case property brought to PS. Case property was deposited with MHC(M) by IO. His statement was recorded in PS. He correctly identified one bedsheet of green maroon colour print by stating that this is the same bedsheet seized by IO from the spot as already Ex. P1. He also correctly identified two packets of condoms by stating that these packets of condoms were seized by IO from the spot as already Ex. P2.
PW20 - Ms. Seema Nain, SSO (Biology), FSL, Rohini, Delhi, who deposed that on 05/04/2013, three sealed parcels were received in DNA Unit of their office in connection of the present case and same were marked to her for examination. The parcels were opened and she conducted the DNA examination of the exhibits. She prepared her detailed report dated 30/04/2014, which is Ex. PW20/A, bearing her signature at point 'A'. DNA profile could not be generated from the 25 of 115 26 FIR No. 357/12 PS - Mukharjee Nagar exhibit '5' (blood sample of accused), so comparison of DNA profile could not be made. On 14/07/2014, one sealed parcel was received in DNA Unit of their office in connection with the present case and same was marked to her for DNA examination. The parcel was opened, which was containing blood sample of accused Vikas. After examination of the blood sample with the exhibits of prosecutrix which were already received in their office on 05/04/2013, she gave her detailed report dated 30/09/2014 Ex. PW20/B, bearing her signature at point 'A'.
PW21 - SI Rajbala is the Investigating Officer (IO) of the case, who deposed that on 26/11/2012, she was posted as SI at PS Mukherji Nagar, Delhi. On that day, at about 10:30 p.m., on receipt of information from PS, she came to PS Mukherji Nagar, Delhi, as there was a call regarding rape. She alongwith W/Constable Anju and Constable Sandeep went to H. No. 266, Parmanand Colony by Government gypsy. There, SI Madan Lal alongwith Constable Sujan met her. He produced prosecutrix (name withheld) before her. Husband of prosecutrix was also present at the spot. She made inquiry from the prosecutrix about the incident. The Crime Team was already informed 26 of 115 27 FIR No. 357/12 PS - Mukharjee Nagar by SI Madan Lal. The Crime Team officials reached at the spot i.e 3rd Floor of H. No. 266, Parmanand Colony, Delhi. The Crime Team inspected the spot and took the photographs of the spot. The Crime Team officials suggested her to seize one bedsheet and two packets of condom, which were sealed (Apas Main Jude Hue The). She alongwith prosecutrix (name withheld), W/Constable Anju and Constable Sandeep went to BJRM Hospital, Jahangir Puri, Delhi by Government vehicle. She got conducted the medical examination of the prosecutrix (name withheld). Doctor handed over two sealed packets alongwith sample seal to her which were taken into Police possession vide seizure memo already Ex. PW12/A (be read as Ex. PW18/A), which bears her signature at point 'B'. Thereafter, they returned to the spot. The NGO was also informed and counseling was provided to prosecutrix. Prosecurtrix (name withheld) gave detailed statement to her in which she levelled allegations of rape against accused Vikas in whose house she used to come for preparing food. She made endorsement Ex. PW21/A, bearing her signature at point 'A'. She handed over Rukka to Constable Sandeep and he was sent to PS for registration of the FIR. She prepared site plan already exhibited as Ex. PW3/F at the instance of prosecutrix 27 of 115 28 FIR No. 357/12 PS - Mukharjee Nagar bearing her signature at point 'B'. She lifted the bedsheet and the packets of condom from the spot and there were two separate packets and these were sealed with the seal of RB. Two parcels were taken into Police possession vide two separate seizure memos already exhibited as Ex. PW3/B and Ex. PW8/A, bearing her signature at point 'B'. Constable Sandeep returned to the spot with copy of FIR and original Rukka. Then, on the pointing out of prosecutrix she arrested accused Vikas from the spot i.e 3rd floor of H.No. 266, Parmanand Colony, Delhi, vide arrest memo and personal search memo already exhibited as Ex. PW3/C & Ex. PW3/D, bearing her signatures at point 'C'. She interrogated the accused Vikas and he gave his disclosure statement which already exhibited as Ex. PW3/E, bearing her signature at point 'D'. She alongwith Constable Sujan took accused Vikas to BJRM Hospital for his medical examination. After the medical examination of accused Vikas, Doctor handed over three sealed parcels alongwith sample to her which were taken into Police possession vide seizure memo already exhibited as Ex. PW8/B, bearing her signature at point 'B'. Thereafter, accused Vikas was brought to the spot. She recorded the statement of PW AjijUl Hassan, husband of prosecutrix and recorded supplementary statement of 28 of 115 29 FIR No. 357/12 PS - Mukharjee Nagar prosecutrix. She alongwith staff and accused came to PS. The case property was deposited in the malkhana and accused Vikas was lodged in lockup. She recorded the statements of witnesses. On 30/11/2012, she got deposited the exhibits in FSL through Constable Vinod. She recorded the statement of Constable Vinod and MHC(M). During investigation, she recorded the statement of landlord of H.No. 266, 3rd Floor, Parmanand Colony, Delhi and the other witnesses resided in the neighbourhood. After completing the investigation, the investigation charge sheet has been filed. Accused Vikas is present in the Court (correctly identified). She correctly identified the case property i.e. bedsheet and condom as already Ex. P1 & Ex. P2.
The testimonies of the prosecution witnesses shall be dealt with in detail during the course of appreciation of evidence.
6. Statement of accused Vikas was recorded u/s 313 Cr.P.C. wherein he pleaded innocence and false implication. Accused initially opted to lead defence evidence but did not lead any defence evidence.
29 of 115 30 FIR No. 357/12 PS - Mukharjee Nagar
7. Learned Counsel for accused submitted that the accused has been falsely implicated as the accused in a false and fabricated case by the Police. Learned Counsel further submitted that there is nothing in the prosecution evidence which may even prove a bit that the accused has committed the alleged offence and the present case has been planted upon the accused. Rather, the complainant as well as other witnesses did not corroborate and prove the story of the prosecution and their testimonies are amply clear that the accused has neither committed the alleged offence of attempt of rape or any other offence. Learned Counsel further submitted that the complainant (name withheld) who was examined as PW3 has specifically stated in her examinationinchief that she was cooking food at the house of the accused but 3/4 months back there took place quarrel with Vikas on the point of payment of her wages at Rs. 2,000/ per month instead of Rs. 3,000/ per month. She also said that she was weeping because accused had threatened to remove her from the said job and went to the house of room partner of the accused Amitabh, who called the Police. PW3 specifically stated "Accused Vikas has not committed anything with me nor he misbehaved with me." She further said that although the Police took her to the Hospital but there 30 of 115 31 FIR No. 357/12 PS - Mukharjee Nagar was no medical examination conducted and also the Police had not seized her clothes. Learned Counsel further submitted that Police failed to produce and identified from the PW3 the alleged seized clothes of the complainant, as the prosecution story relies upon the alleged underwear of the complainant which was allegedly sent for DNA examination. Since no such alleged clothes of the complainant were produced for identifying the same during her examination, therefore, in the absence of the identification of the said alleged clothes seized, the prosecution has miserably failed to prove the alleged seizure memos Ex. PW3/B, PW3/C and PW3/D. It is settled law that without production of the seized articles and getting them identified and proved, the mere production of Seizure Memos cannot prove the articles at all and their identity. In whole of the testimony of PW3, the prosecution never produced or showed or got identified the alleged articles and in this way the whole of the case of the prosecution including the preparation of seizure memo, which loses their significance in the eyes of law. Learned Counsel further submitted that it has been specifically stated by the complainant that neither any misbehavior was done to her, nor she said anything of any attempt to rape or any other offence to her and also specifically 31 of 115 32 FIR No. 357/12 PS - Mukharjee Nagar stated that she was not medically examined nor her clothes were seized by the Police and all these facts goes to prove that only a false case was framed by the Police on the basis of fanciful and flimsy story. Learned Counsel further submitted that even the prosecution could not derive out anything incriminating against the accused from the cross examination got conducted by the Learned Addl. PP of PW3 rather in the said crossexamination the PW3 specifically denied her medical examination in the hospital and also preparation of MLC. She also specifically denied her clothes were seized in the hospital. She also specifically said that police had not seized any bed sheet in her presence. She also specifically denied that police had seized the bed sheet from the room of the accused. She also specifically denied that the accused lower down her salwar/pajama and lifted her shirt and attempted to commit rape upon her. She also specifically denied that she resisted and accused shut her mouth and the accused discharged which fell on her clothes. Thus, in view of the said specific answers, it is unequivocally and amply clear that no such incident had taken place and it is the prosecutrix / complainant who denied of any such act or thing happening with her and also refuted all the proceedings of the police and prosecution including 32 of 115 33 FIR No. 357/12 PS - Mukharjee Nagar her medical examination, seizure of her clothes and bed sheet of the accused and also making any such statement against the accused and also making any such statement against the accused, it only proves that the police had exaggerated the said incident and call made by Amitabh due to the weeping of the complainant on that day. Learned Counsel further submitted that MLC also does not support and corroborate the story of the prosecution and the MLC categorically denied of any such offence of attempt to rape. Even in the MLC it has been alleged that the patient does not name, of the boy who committed alleged assault, and on the other hand, it is the story of the prosecution that the complainant was working as maid servant at the house of the accused and she knew the accused very well since last several months. In fact no such MLC was conducted as PW3 herself stated that no medical examination was conducted upon her at the hospital. Learned counsel submitted that when the PW3 denied all such things in her testimony, the prosecution has failed to confront her with the said MLC during her crossexamination and thus it proves that no such medical examination vide MLC was conducted at all, otherwise, the prosecution ought to have confronted the signatures of the PW3 as allegedly on the said alleged MLC. Learned Counsel further submitted 33 of 115 34 FIR No. 357/12 PS - Mukharjee Nagar that even otherwise MLC also does not mention of any attempt to rape or any other offence with the complainant. Learned counsel submitted that the complainant is a married woman and her husband who was examined as prosecution witness PW15 also did not support the case of the prosecution which also clearly proves that the prosecution has framed an innocent person for an offence which was never been committed. Learned Counsel further submitted that mere reliance by the prosecution on forensic examination of the alleged articles cannot be a reason to get prosecute an innocent person as even otherwise, the alleged underwear of the complainant Ex.2f in the said report was never been produced in the testimony of PW3 to get identified and prove the same, rather the complainant PW3 outrightly denied of seizing of her any cloth by the police. Not only this the PW21 SI Raj Bala who is the investigating officer also did not prove the same in her testimony, nor the same were produced for identification and proving during the examination of PW7 Dr. Seema as well as PW18 W/Ct. Anju who allegedly signed as witness on the alleged seizure memo of the said clothes of the complainant. Learned Counsel further submitted that there are flaws and discrepancies in the story made out by the prosecution and prosecution has miserably 34 of 115 35 FIR No. 357/12 PS - Mukharjee Nagar failed to corroborate and prove its case through its own witnesses, and incidentally each and every prosecution witness resiled away from the prosecution case, only because said witnesses did not prove the test of examination when produced in the witness box as always the truth prevail upon the false and concoction. Learned Counsel further submitted that even the prosecutrix not only failed to prove its false story and charge for the offence u/s 376 IPC, but also for the offence u/s 511 IPC the prosecution has miserably failed as because when no offence was at all committed by the accused and even there has been no intention to commit offence has been proved through evidence by the prosecution against the accused, while the own prosecution witnesses have absolved and aloof themselves from the said charge and story of the prosecution and they virtually termed and declared the accused as an innocent and has committed no offence punishable u/s 376 or 511 IPC. It is also legal settled proposition of law that mere intention to commission of offence not followed by any act cannot constitute an offence and thus it falls short of actual offence. Learned Counsel further submitted that the PW5 Sh. Anand who was also a room partner of the accused did not at all support the story of the prosecution and he merely said that there was dispute of 35 of 115 36 FIR No. 357/12 PS - Mukharjee Nagar payment of the wages of the complainant. Likewise PW6 Dipender Singh was was another room partner also did not support the story of the prosecution and he said the dispute of payment of wages of the complainant. Learned Counsel further submitted that testimony of PW7 Dr. Seema was not trustworthy to prove the alleged MLC and examination of the complainant and the accused on the basis of alleged MLCs as according to her own version the complainant and the accused were allegedly examined by Dr. Jasneet and Dr. Gagan J.R. but the said doctors were not produced in the witness box by the prosecution and in this way the said MLCs were not proved by the prosecution. Learned Counsel further submitted that even the testimonies of PW10 Rajender Kumar and PW14 Amitabh are not trustworthy because they also did not corroborate and fill the lacunae in the story perpetrated by the prosecution and there remains no veracity of their evidence when the complainant PW3 herself denied each and every bit of story of the prosecution. Learned Counsel further submitted that likewise PW15 who is the husband of the complainant also denied of any such incident or crime to his wife i.e., complainant. PW15 denied in his cross examination by the Learned Addl. PP each and every suggestion put to 36 of 115 37 FIR No. 357/12 PS - Mukharjee Nagar him and he did not support all the case of the prosecution. Learned Counsel further submitted that the whole of the story as made out by the prosecution is unbelievable and untrustworthy as it is apparent that no public person or any independent witness was produced and it is a false, fabricated and fake case registered on the basis of manipulated story and charges by the prosecution against innocent person i.e., the accused. Learned Counsel further submitted that the entire investigation is shoddy and under clouds and doubt which is emerged from the testimony of the PWs. Learned Counsel further submitted that material contradictions and flaws in the evidence of prosecution witnesses and none of the prosecution witnesses could prove that the accused committed the alleged offence. The accused has been deliberately dragged and implicated in a false and fabricated case. There has been no evidence at all produced by the prosecution either in the charge sheet or through the witnesses examined, that the accused was in any manner concerned with the commission of alleged offence. Learned Counsel further submitted that prosecution has to stand on its own legs and to prove its allegations against the accused and the prosecution cannot shift its onus to prove the case upon the accused. There have been exaggeration and a deliberate 37 of 115 38 FIR No. 357/12 PS - Mukharjee Nagar attempt to rope the accused in a false and fabricated case, as there was no incriminating evidence on the record of the case and thus nothing has been put to accused u/s 313 CrPC. Learned Counsel referred to the cases and are reported as "Raghunath Vs. State of Rajasthan" 2013(4) CCC 121 (Rajasthan); Deepak Chadha Vs. State 2012(1) JCC 540; Kalloo Passi Vs. State 2009 [2] JCC 1206; Narsinbhai Haribhai Prajapati Vs. Chhatrasinh & Ors. AIR 1977 S.C 1753; Surjit Singh & Anr. Vs. State of Punjab AIR 1994 S.C 110; Deva Vs. State of Rajasthan 1999 CRI. L.J. 265 (SC); Prabhoo Vs. State of Uttar Pradesh AIR 1963 S.C 1113 and Arshad Vs. State of Haryana 2011(1) CCC 536 (P&H). Learned Counsel prayed for the acquittal of the accused on the charge levelled against him.
8. While the Learned Addl. PP for the State, on the other hand, submitted that the testimonies of the prosecution witnesses are cogent and consistent and the contradictions and discrepancies as pointed out are minor and not the material one's and do not affect the credibility of the witnesses and the prosecution has proved its case beyond reasonable doubt.
9. I have heard Sh. Ashok Kumar, Learned Addl. PP for the 38 of 115 39 FIR No. 357/12 PS - Mukharjee Nagar State and Sh. Sanjay Rathi, Learned Counsel for the accused and have also carefully perused the entire record.
10. The charge for the offence punishable u/s 376/511 IPC against accused Vikas is that on 26/11/2012, at about 9:15 p.m. in room near Balcony at House No. 266, 3rd Floor, East Bhai Parmanand Colony, he attempted to commit rape upon prosecutrix (name withheld), aged around 25 years.
11. It is to be mentioned that as a matter of prudence, in order to avoid any little alteration in the spirit and essence of the depositions of the material witnesses, during the process of appreciation of evidence at some places their part of depositions have been reproduced, in the interest of justice.
AGE OF THE PROSECUTRIX
12. PW3 - Prosecutrix in her statement recorded in the Court on 06/06/2013 while giving her particulars has stated her age as 25 years.
Since PW3 - prosecutrix has stated her age as 25 years on 39 of 115 40 FIR No. 357/12 PS - Mukharjee Nagar 06/06/2013 at the time of recording her evidence/statement in the Court and the date of alleged incident is 26/11/2012, on simple arithmetical calculation, the age of the prosecutrix comes to 24 years, 05 months and 20 days as on the date of alleged incident on 26/11/2012.
Moreover, the said factum of age of PW3 - prosecutrix has also not been disputed by accused Vikas. Nor any evidence to the contrary has been produced or proved on the record on behalf of the accused.
In the circumstances, it stands proved on record that PW3 - prosecutrix was aged 24 years, 05 months and 20 days as on the date of incident on 26/11/2012.
MEDICAL EVIDENCE OF THE PROSECUTRIX
13. PW7 Dr. Seema, Medical Officer, BJRM Hospital, Jahangir Puri, Delhi has deposed that she has seen the MLC No. 50874 of prosecutrix (name withheld) W/o Asisul, Age 25 years, female who was brought to Hospital on 27/11/2012 at 1:00 a.m. with the alleged 40 of 115 41 FIR No. 357/12 PS - Mukharjee Nagar history of sexual assault. The patient was initially examined by Dr. Santosh, J.R. and on local examination no fresh injury were seen. Thereafter, patient was referred to S.R. Gynae whereupon patient was examined by Dr. Seema, S.R. Gynae and on per vagina examination : hymen torn, old tear, admits two finger easily. At present Dr. Santosh and Dr. Seema, S.R. (Gynae) are not working in their Hospital and there present whereabouts are not known as per record. She is acquainted with their handwriting and signatures as she has seen them while writing and signing during the course of her duty. The MLC of prosecutrix (name withheld) is Ex. PW7/B, bearing the signature of Dr. Santosh at point 'A' and of Dr. Seema at point 'B'.
Despite grant of opportunity, PW7 Dr. Seema was not crossexamined on behalf of the accused.
In view of above and in the circumstances, the medical/gynaecological examination vide MLC Ex. PW7/B of PW3 - prosecutrix stands proved on the record.
VIRILITY OF THE ACCUSED VIKAS 41 of 115 42 FIR No. 357/12 PS - Mukharjee Nagar
14. PW7 Dr. Seema, Medical Officer, BJRM Hospital, Jahangir Puri, Delhi has deposed that she has been deputed in this case by the MS of the Hospital to depose before the Hon'ble Court. She has seen MLC No. 50876 of Vikas S/o Jai Prakash, Age 23 Years, male who was brought to Hospital on 27/11/2012 at 3:00 a.m. for medical examination being accused of rape. The patient was initially examined by Dr. Gagan, J.R. and on local examination no external fresh injury seen and thereafter patient was referred to S.R. Surgery where patient was examined by Dr. Jasneet and as per MLC, he opined that there is nothing to suggest that patient Vikas is not capable of performing sexual intercourse. At present Dr. Gagan and Dr. Jasneet are not working in their Hospital and there present whereabouts are not known as per record. She is acquainted with their handwriting and signatures as she has seen them while writing and signing during the course of her duty. The MLC of Vikas is Ex. PW7/A, bearing signature of Dr. Gagan at point 'A' and of Dr. Jasneet at point 'B'.
Despite grant of opportunity, PW7 Dr. Seema was not crossexamined on behalf of the accused.
42 of 115 43 FIR No. 357/12 PS - Mukharjee Nagar In view of above and in the circumstances, it stands proved on the record that accused Vikas was capable of performing sexual intercourse.
BIOLOGICAL AND SEROLOGICAL EVIDENCE
15. PW17 - Dr. Manisha Upadhaya, Senior Scientific Officer, FSL, Rohini, Delhi has proved the biological and serological reports Ex. PW17/A and Ex. PW17/B respectively bearing her signature at point 'A'.
As per biological report Ex. PW17/A the description of articles contained in parcel and result of analysis reads as under : DESCRIPTION OF ARTICLES CONTAINED IN PARCEL Parcel '1' : One sealed cardboard box sealed with the seal of "MS BJRMS J PURI DELHI" containing exhibits '1a', '1b', '1c', '1d', '1e', '1f', '1g', '1h', '1i', '1j', '1k', '1l', '1m' & '1n' each kept in separate envelope.
Exhibit '1a' : Cotton wool swab on a stick kept in a tube marked as Step 4 Body fluid collection'.
Exhibit '1b' : Cotton wool swab on a stick wrapped in paper 43 of 115 44 FIR No. 357/12 PS - Mukharjee Nagar marked as Step 4 In between fingers.
Exhibit '1c' : Empty paper alongwith forcep marked as Step 4 Debris Collection kept unexamined as nothing was found in it.
Exhibit '1d' : Cotton wool swab on a wooden stick marked as Step 5 Breast Swab.
Exhibit '1e' : One empty paper alongwith comb marked Step 6 combing of Pubic hair kept unexamined as nothing was found in it.
Exhibit '1f' : Few clipping of hair alongwith scissor marked as Step 7 Clipping of Pubic hair.
Exhibit '1g1' : Two microslides having faint whitish smear marked & '1g2' as Step 9 Vaginal Secretion (V) kept in a plastic case. Exhibit '1h' : Cotton wool swab on a stick kept in a tube marked as Step 9 'Cervical Mucus collection (C).
Exhibit '1i' : One dirty wet Cotton wool swab kept in fluid filled tube marked as Step 10 Culture.
Exhibit '1j' : Liquid/fluid kept in syringe marked as Step 11 'Washing from Vagina'.
Exhibit '1k1': Two microslides having faint whitish smear marked & '1k2' as Step 12 'Rectal Examination' kept in a plastic case. Exhibit '1l1' : Two microslides having faint whitish smear marked & '1l2' as Step 12 'Oral Swab' kept in a plastic case. Exhibit '1m' : Dark brown foul smelling liquid kept in two separate tube marked as Step 14 Blood collection of victim. Exhibit '1n1' : Dark brown foul smelling liquid kept in a tube marked as Step 15 urine and oxalate Blood vial. Exhibit '1n2' : Dirty brownish liquid/fluid kept in a plastic container marked as Step 15 urine and oxalate blood vial.
44 of 115 45 FIR No. 357/12 PS - Mukharjee Nagar Parcel '2' : One sealed envelope sealed with the seal of "MS BJRMS J PURI DELHI" containing exhibits '2a', '2b', '2c', '2d', '2e', '2f', '2g'.
Exhibit '2a' : One salwar having very few dirty stains. Hair could not be detected on exhibit 2a i.e. salwar.
Exhibit '2b' : One sweater. Hair could not be detected on exhibit 2b i.e. sweater.
Exhibit '2c' : One lady's shirt. Hair could not be detected one exhibit 2c i.e. lady's shirt.
Exhibit '2d' : One pyjamee having very few dirty stains. Hair could not be detected on exhibit 2d i.e. pyjamee. Exhibit '2e' : One shameez. Hair could not be detected on exhibit 2e i.e. shameez.
Exhibit '2f' : One underwear. Hair could not be detected on exhibit 2f i.e. underwear.
Exhibit '2g' : One brassier. Hair could not be detected on exhibit 2g i.e. brassier.
Parcel '3' : One sealed cloth parcel sealed with the seal of "MS BJRMS J PURI DELHI" containing exhibit '3'.
Exhibit '3' : One underwear having very few dirty stains. Hair could not be detected on exhibit 3 i.e. underwear. Parcel '4' : One sealed cloth parcel sealed with the seal of "MS BJRMS J PURI DELHI" containing exhibit '4'.
Exhibit '4' : Few strands of hair kept in a plastic bottle kept unexamined for comparison.
Parcel '5' : One sealed cloth parcel sealed with the seal of "MS BJRMS J PURI DELHI" containing exhibit '3' (Be read as exhibit '5').
Exhibit '5' : Dirty brown gauze cloth piece kept in a plastic 45 of 115 46 FIR No. 357/12 PS - Mukharjee Nagar container described as Blood sample.
Parcel '6' : One sealed cloth parcel sealed with the seal of "RB"
containing exhibit '6'.
Exhibit '6' : One dirty Bedsheet. Hair could not be detected on exhibit 6 i.e. Bedsheet.
RESULT OF ANALYSIS
1. Blood was detected on exhibits '1m', '1n1', '2a', '2f' & '5.'
2. Blood could not be detected on exhibits '1a', '1b', '1d', '1f', '1h', '1i', '1j', '1n2', '2b', '2c', '2d', '2e', '2g', '3' & '6'.
3. Human semen was detected on exhibits '1k1', '1k2', '2f', '3' & '6'.
4. Semen could not be detected on exhibits '1a', '1b', '1d', '1f', '1g1', '1g2', '1h', '1i', '1j', '1l1', '1l2', '1n2', '2a', '2b', '2c', '2d', '2e' & '2g'.
5. Report of serological analysis in original is attached herewith. NOTE :
1. Regarding query No. 4 Report in original from DNA unit will be furnished separately.
2. Remnants of the exhibits have been sealed with the seal of 'FSL MU DELHI'.
The serological report Ex. PW17/B reads as under: Exhibits Species of origin ABO Grouping/Remarks Blood Stains: '1m' Blood sample No Reaction * '1n1' Blood sample No Reaction * 46 of 115 47 FIR No. 357/12 PS - Mukharjee Nagar '2a' Salwar Human No Reaction ** '2f' underwear Human Inconclusive '5' Blood stained gauze Human No Reaction ** cloth piece Semen Stains: Inconclusive '2f' Underwear '3' Underwear No Reaction ** '6' Bedsheet No Reaction ** * Origin specific antigens degenerated.
** Group specific antigens degenerated.
As per the biological report Ex. PW17/A, with regard to the description of the articles contained in the parcels, it is noticed that Parcel Nos. 1 & 2 belong to the prosecutrix which were seized vide seizure memo Ex. PW18/A, dated 27/11/2012, Parcel Nos. 3, 4 & 5 belong to the accused Vikas which were seized vide seizure memo Ex. PW8/B, dated 27/11/2012 and Parcel No. 6 containing one dirty Bedsheet was recovered from the scene of crime vide seizure memo Ex. PW3/B, dated 27/11/2012.
47 of 115 48 FIR No. 357/12 PS - Mukharjee Nagar On careful perusal and analysis of the biological and serological evidence on record, it clearly shows that blood was detected on exhibit '1m' (Blood collection of victim), exhibit '1n1' (Urine and oxalate Blood vial of the prosecutrix), exhibit '2a' (Salwar of the prosecutrix), exhibit '2f' (Underwear of the prosecutrix) & exhibit '5' (Blood sample of accused Vikas); blood could not be detected on exhibit '1a' (Body fluid collection of the prosecutrix), exhibit '1b' (In between fingers of the prosecutrix), exhibit '1d' (Breast swab of the prosecutrix), exhibit '1f' (Clipping of Pubic hair of the prosecutrix), exhibit '1h' (Cervical Mucus collection (C) of the prosecutrix), exhibit '1i' (Culture of the prosecutrix), exhibit '1j' (Washing from Vagina of the prosecutrix), exhibit '1n2' (Urine and oxalate blood vial of the prosecutrix), exhibit '2b' (Sweater of the prosecutrix), exhibit '2c' (Lady's shirt of the prosecutrix), exhibit '2d' (Pyjamee of the prosecutrix), exhibit '2e' (Shameez of the prosecutrix), exhibit '2g' (Brassier of the prosecutrix), exhibit '3' (Underwear of accused Vikas) & exhibit '6' (Bedsheet recovered from the place of incident); Human semen was detected on exhibit '1k1' (Rectal Examination of the prosecutrix), exhibit '1k2' (Rectal Examination of the prosecutrix), exhibit 48 of 115 49 FIR No. 357/12 PS - Mukharjee Nagar '2f' (Underwear of the prosecutrix), exhibit '3' (Underwear of the accused) & exhibit '6' (Bedsheet recovered from the place of incident) and semen could not be detected on exhibit '1a' (Body fluid collection of the prosecutrix), exhibit '1b' (In between fingers of the prosecutrix), exhibit '1d' (Breast Swab of the prosecutrix), exhibit '1f' (Clipping of Pubic hair of the prosecutrix), exhibit '1g1' (Vaginal Secretion (V) of the prosecutrix), exhibit '1g2' (Vaginal Secretion (V) of the prosecutrix), exhibit '1h' (Cervical Mucus collection (C) of the prosecutrix), exhibit '1i' (Culture of the prosecutrix), exhibit '1j' (Washing from Vagina of the prosecutrix), exhibit '1l1' (Oral Swab of the prosecutrix), exhibit '1l2' (Oral Swab of the prosecutrix), exhibit '1n2' (Urine and oxalate blood vial of the prosecutrix), exhibit '2a' (Salwar of the prosecutrix), exhibit '2b' (Sweater of the prosecutrix), exhibit '2c' (Lady's shirt of the prosecutrix), exhibit '2d' (Pyjamee of the prosecutrix), exhibit '2e' (Shameez of the prosecutrix) & exhibit '2g' (Brassier of the prosecutrix). As per the serological report Ex. PW17/B exhibit '2a', '2f' and '5' shows species of origin as 'human' and gave 'no reaction/inconclusive' on ABO Grouping, exhibits '1m' and '1nl' gave 'no reaction' on the species of origin, exhibits '2f', '3' and '6' 49 of 115 50 FIR No. 357/12 PS - Mukharjee Nagar remained 'inconclusive/no reaction' on the species of origin and ABO Grouping.
As per the biological report Ex. PW17/A, prosecution has discharged its initial burden of proving the presence of Human semen on exhibit '1k1' (Rectal Examination of the prosecutrix) seized vide seizure memo Ex. PW18/A, dated 27/11/2012, exhibit '1k2' (Rectal Examination of the prosecutrix) seized vide seizure memo Ex. PW18/A, dated 27/11/2012, exhibit '2f' (Underwear of the prosecutrix) seized vide seizure memo Ex. PW18/A, dated 27/11/2012, exhibit '3' (Underwear of the accused) seized vide seizure memo Ex. PW8/B, dated 27/11/2012 & exhibit '6' (Bedsheet recovered from the place of incident) seized vide seizure memo Ex. PW3/B, dated 27/11/2012. Accused was under an obligation to explain how and under what circumstances, the Human semen came to be present on the said exhibits '1k1', '1k2', '2f', '3' & '6' as detailed hereinabove. The absence of such an explanation both in the section 313 Cr.P.C. statement of the accused Vikas and his omission to lead any evidence 50 of 115 51 FIR No. 357/12 PS - Mukharjee Nagar in this regard and his complete denial becomes an additional link in the prosecution case.
DNA FINGERPRINTING EVIDENCE
16. PW20 - Ms. Seema Nain, SSO (Biology), FSL, Rohini, Delhi has deposed that on 05/04/2013, three sealed parcels were received in DNA Unit of their office in connection of the present case and same were marked to her for examination. The parcels were opened and she conducted the DNA examination of the exhibits. She prepared her detailed report dated 30/04/2014, which is Ex. PW20/A, bearing her signature at point 'A'. DNA profile could not be generated from the exhibit '5' (blood sample of accused), so comparison of DNA profile could not be made. On 14/07/2014, one sealed parcel was received in DNA Unit of their office in connection with the present case and same was marked to her for DNA examination. The parcel was opened, which was containing blood sample of accused Vikas. After examination of the blood sample with the exhibits of prosecutrix which were already received in their office on 05/04/2013, she gave her detailed report dated 30/09/2014 Ex. PW20/B, bearing her signature at point 'A'.
51 of 115 52 FIR No. 357/12 PS - Mukharjee Nagar As per DNA Report/FSL2012/B8357 Ex. PW20/A, dated 30/04/2014, the description of the articles contained in the parcel, DNA examination and result of examination reads as under : DESCRIPTION OF THE ARTICLES CONTAINED IN PARCEL Parcel '1' : One sealed paper envelope sealed with the seal of "MU FSL DELHI" containing exhibits '1a', '1b', '1c', '1d', '1e', '1f', '1g', '1h', '1i', '1j', '1k1', '1k2', '1l', '1m' and '1n'.
Exhibit '1k1': Two microslides kept in plastic case described as
& '1k2' 'Rectal Examination'.
Exhibit '1m' : Dark brown liquid kept in tubes described as 'Blood
sample of victim'.
Parcel '2' : One sealed paper envelope sealed with the seal of
"MU FSL DELHI" containing exhibits '2a', '2b', '2c', '2d', '2e', '2f', '2g', stated to be of victim.
Exhibit '2a' : One dirty salwar. Exhibit '2b' : One dirty underwear. Parcel '5' : One sealed paper envelope sealed with the seal of
"MU FSL DELHI" containing exhibit '5', kept in a plastic dibbi stated to be of accused Vikas.
52 of 115 53 FIR No. 357/12 PS - Mukharjee Nagar Exhibit '5' : Gauze cloth piece having dirty brownish stains described as 'Blood sample of accused'.
DNA EXAMINATION Exhibits '1k1' & '1k2' (Microslides of victim), '1m' (Blood sample of victim), '2a' (Salwar of victim), '2f' (Underwear of victim) and '5' (Blood sample in gauze of accused), were subjected to DNA isolation. DNA was isolated from the source of exhibits '1k1' & '1k2' (Microslides of victim), '1m' (Blood sample of victim), '2a' (Salwar of victim), '2f' (Underwear of victim) and '5' (Blood sample in gauze of accused). Identifiler plus amplification (STR) kit was used for each of the exhibit and data was analyzed by GeneMapper IDx Software. Result : DNA Profile was generated from the source of exhibits '1k1' & '1k2' (Microslides of victim), '1m' (Blood sample of victim) and '2f' (Underwear of victim). However, DNA Profile could not be generated from the source of exhibits '2a' (Salwar of victim) and '5' (Blood sample in gauze of accused) due to degraded stains. Therefore comparison of DNA profile could not be made.
Note : 1) Comparison with DNA profile from the source of victim is possible on the availability of fresh blood sample of accused.
2) Remnants of the exhibits have been sealed with the seal of "SNn FSL DELHI".
As per the DNA Report Ex. PW20/A, DNA Profile was 53 of 115 54 FIR No. 357/12 PS - Mukharjee Nagar generated from the source of exhibits '1k1' & '1k2' (Microslides of victim), '1m' (Blood sample of victim) and '2f' (Underwear of victim). However, DNA Profile could not be generated from the source of exhibits '2a' (Salwar of victim) and '5' (Blood sample in gauze of accused) due to degraded stains. Therefore comparison of DNA profile could not be made.
As per DNA Report/FSL2014/DNA5074 Ex. PW20/B, dated 30/09/2014, the description of the articles contained in the parcel, DNA examination, result of examination and conclusion reads as under : DESCRIPTION OF ARTICLES CONTAINED IN PARCEL Parcel '1' : One sealed cloth parcel sealed with the seal of "MS BJRMS J. PURI DELHI" containing exhibit '1', stated to be of accused Vikas.
Exhibit '1' : Gauze cloth piece having brown stains described as 'Blood sample on gauze of accused'.
DNA EXAMINATION Exhibit '1' (Blood sample in gauze of accused Vikas), was subjected to 54 of 115 55 FIR No. 357/12 PS - Mukharjee Nagar DNA isolation. DNA was isolated from the source of exhibit '1' (Blood sample in gauze of accused Vikas), DNA Profile was generated form the source of exhibit '1' (Blood sample in gauze of accused Vikas). Identifiler plus amplification (STR) kit was used for each of the exhibit and data was analyzed by GeneMapper IDx Software. Result : The alleles from the source of exhibit '1' (Blood sample in gauze of accused Vikas) vide FSL2014/DNA5074), are accounted in the alleles from the source of exhibits '1k1' & '1k2' (Microslides of victim vide FSL No - 2012/B8357) and '2f' (Underwear of victim vide FSL No - 2012/B8357). Conclusion : DNA Profiling (STR analysis) performed on the source of exhibit '1' (Blood sample in gauze of accused Vikas vide FSL2014/DNA5074), '1k1' & '1k2' (Microslides of victim vide FSL No
- 2012/B8357), '1m' (Blood sample of victim vide FSL No - 2012/B8357) and '2f' (Underwear of victim vide FSL No - 2012/B8357) is sufficient to conclude that DNA profile from the source of exhibit '1' (Blood sample in gauze of accused Vikas vide FSL2014/DNA5074) is similar with DNA profile from the source of exhibits '1k1' & '1k2' (Microslides of victim vide FSL No - 2012/B8357) and '2f' (Underwear of victim vide FSL No - 2012/B8357).
Note :
1) Remnants of the exhibits have been sealed with the seal of "SNn FSL DELHI".
55 of 115 56 FIR No. 357/12 PS - Mukharjee Nagar It is to be mentioned that FSL2014/DNA5074 is Ex. PW20/B and FSL No - 2012/B8357 is Ex. PW17/A. As per DNA Report/FSL2014/DNA5074 Ex. PW20/B, dated 30/09/2014, it is clearly indicated that the alleles from the source of exhibit '1' (Blood sample in gauze of accused Vikas vide FSL2014/DNA5074), are accounted in the alleles from the source of exhibits '1k1' & '1k2' (Microslides of victim vide FSL No - 2012/B8357) and '2f' (Underwear of victim vide FSL No - 2012/B8357). DNA Profiling (STR analysis) performed on the source of exhibit '1' (Blood sample in gauze of accused Vikas vide FSL2014/DNA5074), '1k1' & '1k2' (Microslides of victim vide FSL No
- 2012/B8357), '1m' (Blood sample of victim vide FSL No - 2012/B8357) and '2f' (Underwear of victim vide FSL No - 2012/B8357) is sufficient to conclude that DNA profile from the source of exhibit '1' (Blood sample in gauze of accused Vikas vide FSL2014/DNA5074) is similar with DNA profile from the source of exhibits '1k1' & '1k2' (Microslides of victim vide FSL No - 2012/B8357) and '2f' (Underwear of victim vide FSL No -
56 of 115 57 FIR No. 357/12 PS - Mukharjee Nagar 2012/B8357).
17. It is settled legal proposition that the dependable part of the evidence of a hostile witness can be relied upon.
In case of "Rameshbhai Mohanbhai & Ors. Vs. State of Gujrat" 2010 XI AD (S.C.) 53, the Hon'ble Supreme Court held that : "It is settled legal proposition that the evidence of a prosecution witness cannot be rejected in toto merely because the prosecution chose to treat him as hostile and crossexamined him. The evidence of such witnesses cannot be treated as effaced or washed off the record altogether but the same can be accepted to the extent that their version is found to be dependable on a careful scrutiny thereof. [Vide Bhagwan Singh Vs. State of Haryana 1976 SCC (Cri) 7, Rabindra Kumar Dey Vs. State of Orissa 1976 SCC (Cri) 566, Syad Akbar Vs. State of Karnataka 1980 SCC (Cri) 59 and Khujji Vs. State of M.P. 1991 SCC (Cri) 916].
In State of U.P. Vs. Ramesh Prasad Misra 1996 SCC (Cri) 1278, this Court held that evidence of a hostile witness would not be totally rejected if spoken in favour of the prosecution or the accused but required to be subjected to close scrutiny and that portion of evidence which is consistent with the case of the prosecution or defence can be 57 of 115 58 FIR No. 357/12 PS - Mukharjee Nagar relied upon. A similar view has been reiterated by this Court in Balu Sonba Shinde Vs. State of Maharashtra 2002 VII AD (S.C.) 249 = 2003 SCC (Cri) 112, Gagan Kanojia Vs. State of Punjab (2008) 1 SCC (Cri) 109, Radha Mohan Singh Vs. State of U.P. 2006 I AD (S.C.) 417 = (2006) 1 SCC (Cri) 661, Sarvesh Narain Shukla Vs. Daroga Singh (2009) 1 SCC (Cri) 188 and Subbu Singh Vs. State (2009) 2 SCC (Cri) 1106.
In a criminal prosecution when a witness is crossexamined and contradicted with the leave of the Court, by the party calling him, his evidence cannot, as a matter of law, be treated as washed off the record altogether. It is for the Judge to consider the fact in each case whether as a result of such examination and contradiction, the witness stands thoroughly discreted or can still be believed in regard to a part of his testimony. If the Judge finds that in the process, the credit of the witness has not been completely shaken, he may, after reading and considering the evidence of the witness, as a whole, with due caution and care, accept, in the light of the other evidence on the record, that part of his testimony which he finds to be creditworthy and act upon it. If in a given case, the whole of the testimony of the witness is impugned and in the process, the witness stands squarely and totally discredited the Judge should, as a matter of prudence, discard his evidence in toto ; (Ref. Pandappa Hanumappa Nanamar V. State of Karnataka, (1997) 3 Supreme Today 63).
Evidence of a prosecution witness cannot be rejected in India merely because the prosecution chose to treat him as hostile and 58 of 115 59 FIR No. 357/12 PS - Mukharjee Nagar crossexamine him. Evidence of such witness cannot be treated as effaced or washed off the record altogether but the same can be accepted to the extent his version is found to be dependable or careful scrutiny thereof ; (Ref. Prithi Vs. State of Haryana, (2010) 8 SCC 536).
The fact that witnesses have been declared hostile does not result in automatic rejection of their evidence. Even the evidence of a hostile witness if it finds corroboration from the facts of the case may be taken into account while judging the guilt of an accused ; (Ref. Lalla Srinivasa Rao Vs. State of Andhra Pradesh, AIR 2004 SC 1720).
In case 'Himanshu @ Chintu Vs. State (NCT of Delhi)', (2011) 2 SCC 36, the Hon'ble Supreme Court held that the dependable part of the evidence of a hostile witness can be relied on. Thus it is the duty of the Court to separate the grain from the chaff and the maxim falsus in uno falsus in omnibus, has no application in India vide 'Nisar Alli Vs. The State of Uttar Pradesh', AIR 1957 SC 366.
18. Now let the testimony of PW3 Prosecutrix be perused and analysed.
PW3 Prosecutrix, in her examinationinchief has 59 of 115 60 FIR No. 357/12 PS - Mukharjee Nagar deposed which is reproduced and reads as under : "I am doing the work of cooking food. Date, month and year I do not remember, however, it was around three/four month ago I was working in Parmanand Colony. A quarrel took place with Vikas who was residing in Parmanand Colony as I was working as a maid servant at his house. The quarrel took place as accused was paying Rs. 2,000/ per month to me instead of Rs. 3,000/ per month as agreed. Accused Vikas was threatening me to leave the job. Since I was in need of money so I was weeping, I went to the house of Amitabh Bhaiya in the Parmanand Colony. The room partner of Amitabh had called the Police. Police came there. Police took the Vikas and me in the Police Station. Accused Vikas has not committed anything with me nor he misbehaved with me. Police made inquiries from me and (recorded) the statement Ex. PW3/A, bearing my signature at point 'A'. Police had took me in the Hospital but I was not medically examined. Police had not seized my clothes.
I can identify the accused Vikas, if shown to me. At this stage the wooden partition is removed. The witness pointed towards the accused Vikas and identified him correctly.
At this stage the wooden partition is restored to its original position."
From the aforesaid narration of PW3 - prosecutrix, it is clear that she was doing the work of cooking food. Date, month and year she does not remember, however, it was around three/four month ago she 60 of 115 61 FIR No. 357/12 PS - Mukharjee Nagar was working in Parmanand Colony. A quarrel took place with Vikas who was residing in Parmanand Colony as she was working as a maid servant at his house. The quarrel took place as accused was paying Rs. 2,000/ per month to her instead of Rs. 3,000/ per month as agreed. Accused Vikas was threatening her to leave the job. Since she was in need of money so she was weeping, she went to the house of Amitabh Bhaiya in the Parmanand Colony. The room partner of Amitabh had called the Police. Police came there. Police took the Vikas and her in the Police Station. Accused Vikas has not committed anything with her nor he misbehaved with her. Police made inquiries from her and recorded the statement Ex. PW3/A, bearing her signature at point 'A'. Police took her in the Hospital but she was not medically examined. Police had not seized her clothes. She correctly identified accused Vikas present in the Court.
PW3 - Prosecutrix was also crossexamined by the Learned Addl. PP for the State as she was resiling from her previous statement which is reproduced and reads as under : "It is correct that I was working as a maid servant in House 61 of 115 62 FIR No. 357/12 PS - Mukharjee Nagar No. 266, East, Bhai Parmanand Colony, 3rd Floor. It is correct that three boys Vikas, Bhupender and Anand were residing on the 3rd Floor. It is wrong to suggest on 26/11/2012 at about 8:30 p.m. when I was cleaning the utensils after making the food on the above said house and at that time accused Vikas, present in the Court today was alone and he came to me and started doing absurd talks (Ulti Sidhi Bate) with me (Confronted with portion 'A' to 'A' of statement Ex. PW3/A where it is so recorded). It is further wrong to suggest that accused Vikas bolted the room inside, caught hold my hand and took me in the room near the balcony and laid me down on the matteresses (mattresses) on which one bed sheet was lying (Confronted with portion 'B' to 'B' of statement Ex. PW3/A where it is so recorded). It is further wrong to suggest that accused Vikas lower down my salwar/pajami and lifted my shirt and attempted to commit rape upon me (Confronted with portion 'D' to 'D' of statement Ex. PW3/A where it is so recorded). It is further wrong to suggest that when I resisted, accused Vikas shut my mouth and in the meantime he discharged which fell on my clothes (Confronted with portion 'E' to 'E' of statement Ex. PW3/A where it is so recorded). It is wrong to suggest that some how I escaped myself, opened the kundi and ran to Amitabh Bhai and narrated to him all the incident. (Confronted with portion 'F' to 'F' of statement Ex. PW3/A where it is so recorded). It is wrong to suggest that I was medically examined in the Hospital and MLC was prepared and I am deposing falsely in this regard. It is wrong to suggest that my clothes were seized in the Hospital and I am deposing falsely in this regard. Police had not seized any bed sheet in my presence. It is wrong to suggest that Police had seized the bed sheet from the room of accused Vikas and my signature was obtained on the memo. However, seizure memo Ex. PW3/B bears my signature at point 'A'. It is correct that arrest memo of accused Vikas which is Ex. PW3/C, personal search 62 of 115 63 FIR No. 357/12 PS - Mukharjee Nagar memo Ex. PW3/D and disclosure statement Ex. PW3/E bear my signature at point 'A'. It is also correct that Site Plan Ex. PW3/F also bears my signature at point 'A'. It is wrong to suggest that accused Vikas, present in the Court today had attempted to commit rape upon me on 26/11/2012. It is wrong to suggest that I have compromised the matter with the accused and I have been won over by the accused and due to this reason I am deliberately deposing falsely to save accused."
Despite grant of opportunity, PW3 - prosecutrix was not crossexamined on behalf of the accused.
Now let the testimonies of PW5 - Sh. Anand, PW6 - Sh. Dipender Singh and PW15 - Sh. Sh. AzizUlHasan, husband of the prosecutrix be perused and analysed.
PW5 - Sh. Anand in his examinationinchief has deposed that he is working as Constable in Delhi Police and at present posted in PS Chhawla. On 26/11/2012, he was residing as a tenant in House No. 266, Parmanand Colony, Delhi alongwith Dipender, Yogender & Vikas. They had taken the above said house on rent on 03/11/2012. They had employed a maid/prosecutrix (name withheld) in their room for Rs.
63 of 115 64 FIR No. 357/12 PS - Mukharjee Nagar 2,000/ per month. She used to cook their food and used to do other house hold work. On 26/11/2012, he had left his room at about 6:00/7:00 p.m. for his duty. Dipender had gone to discuss some matter with his friend at Mukherji Nagar as he was preparing for SSC Exam. Yogender was ill and he had gone to his house on 1718/11/2012. Accused Vikas, present in the Court was at the room. On next day, in the morning when he (PW5) came in the room, the Police had came there and a quarrel has taken place between Vikas and prosecutrix (name withheld) and accused Vikas was arrested. There was a dispute regarding money between them. Police made inquiries from him (PW5).
PW5 - Sh. Anand was also crossexamined by the Learned Addl. PP for the State as he was resiling from his previous statement which is reproduced and reads as under : "I had visited in the Police Station when I came to know that Vikas has been arrested by the police. I was not allowed to meet with the accused in the Police Station. I made inquiries from the PS and I came to know that he has been arrested in a case regarding money transaction. I did not ask for the copy of FIR in which accused Vikas was arrested. It is wrong to suggest that I came to know in the PS that he has been arrested in a case for attempt to commit rape upon Shefali. It is 64 of 115 65 FIR No. 357/12 PS - Mukharjee Nagar wrong to suggest that I came to know from the neighborhood that accused Vikas had attempted to commit rape upon prosecutrix (name withheld) (Confronted with statement Mark A where it is so recorded) . It is wrong to suggest that I am deposing falsely as accused Vikas is my friend and I want to save him."
PW5 - Sh. Anand during his crossexamination by the Learned Counsel for the accused has deposed that : "It is correct that Police had made inquiries from me on the telephone."
PW6 - Sh. Dipender Singh in his examinationinchief has deposed that he is a student. On 26/11/2012, he was residing as a tenant in House No. 266, Parmanand Colony, Delhi alongwith Anand, Yogender & Vikas. They had taken the above said house on rent on 03/11/2012. They had employed a maid/prosecutrix (name withheld) in their room for Rs. 2000/ per month. She used to cook their food and used to do other house hold work. On 26/11/2012, Anand had left the room at about 6:00/7:00 p.m. for his duty. He had gone to discuss some matter with his friend at Mukherji Nagar as he was preparing for SSC Exam. Yogender was ill and he had gone to his house on 1718/11/2012. Accused Vikas, 65 of 115 66 FIR No. 357/12 PS - Mukharjee Nagar present in the Court was at the room. On the same day, at about 10:00/10:30 p.m. when he came on the room Vikas told him that prosecutrix (name withheld) is quarreling on the payment/salary. Vikas further told him that he had given Rs. 2000/ to her but she is demanding Rs. 3,000/. When they were eating food, Police came there and took the Vikas in the Police Station. On the next day, he had gone to his house.
PW6 - Sh. Dipender Singh was also crossexamined by the Learned Addl. PP for the State as he was resiling from her previous statement which is reproduced and reads as under : "I had not visited in the Police Station with Vikas. Police remained at the spot for about ten minutes. Prosecutrix (name withheld) was also present there. Amitabh had also come there. I had not gone down stairs when police came there so I cannot tell how many persons gathered there at that time. It is wrong to suggest that accused Vikas had attempted to commit rape upon prosecutrix (name withheld) and that is why due to fear I had not visited the Police Station and had fled away to my house. It is wrong to suggest that I am deposing falsely to save the accused Vikas, present in the court today as he is my friend."
PW6 - Sh. Dipender Singh was not crossexamined on 66 of 115 67 FIR No. 357/12 PS - Mukharjee Nagar behalf of accused despite grant of opportunity.
PW15 - Sh. AzizUlHasan is the husband of the prosecutrix who in his examinationinchief has deposed that he is a Rickshaw Puller. He does not know date, month & year, however, it was about one year ago, he was present at his house at about 8:00/9:00 p.m., he had received a telephone call from the associates of Amitabh Bhaiya and called at the house of Amitabh Bhiya. He went there where he met the associates of Amitabh Bhaiya and they told him that, "where prosecutrix (name withheld) works in Parmanand Colony at house No. 266, there a dispute had taken place on money and for this they have called the Police". Thereafter, he went to House No. 266, Parmanand Colony, there he saw the Police Van found present. There the Police asked him as to who he is? He told Police that he is the husband of prosecutrix (name withheld). Then he wanted to go upper floor (upar jana chahta tha) of the said house, on which, Police told him not to go on the upper floor as there were already two Police official present. Thereafter, the two Police officials with a Larka (boy), with his wife/prosecutrix (name withheld) came down from the upper floor. He 67 of 115 68 FIR No. 357/12 PS - Mukharjee Nagar does not identify the said boy. The Police Official standing there while pointing to him told to the Police official who had come down from the upper floor that husband of prosecutrix (name withheld) had come. When he was in the process to sit in the 100 number Police van as the others were also going to sit in the said Van at that time, Police told him that there is no need of him to go and asked him to sign on 24 papers (tumare jane ki jarurat nahi hai, tum doo char kagzo par sign kar do). Thereupon, he signed four papers and thereafter he was told by the Police to go to his house. He had no chance to talk to his wife/prosecutrix (name withheld).
PW15 - Sh. AzizUlHasan was also crossexamined by the Learned Addl. PP for the State as he was resiling from her previous statement which is reproduced and reads as under : "Police had not recorded my statement. No inquiry was made from me by the Police. I do not know as to whether any inquiry was made from my wife/prosecutrix (name withheld)."
"It is correct that my wife/prosecutrix (name withheld) used to go to house No. 266, Parmanand Colony for cooking food for three four boys who had been residing there. I cannot say if the name of that
68 of 115 69 FIR No. 357/12 PS - Mukharjee Nagar boy with whom Police official and my wife were coming down from the upper floor, was Vikas. Neither Police official nor my wife/prosecutrix (name withheld) informed me the name of that boy (offender) as Vikas. It is wrong to suggest that as my wife/prosecutrix (name withheld) informed me that the said boy had attempted to commit rape with her. Vol. at that time no conversation between me and my wife took place at the spot. I do not know as to whether Police officials took my wife to BJRM Hospital or not. Vol. Police took my wife in their vehicle and I was asked to go whom (home). It is wrong to suggest that crime team came to the spot for inspection and the photographs of the spot were also taken in my presence. It is wrong to suggest that Police arrested accused Vikas in my presence at the instance of my wife/prosecutrix (name withheld). It is wrong to suggest that I am deliberately not identifying accused Vikas present in the Court today as matter has already been compromised. Vol. I could not see the face of that boy who was brought from the upper floor by Police as he was in muffled face at that time. It is wrong to suggest that my statement was recorded by the Police in this case.
At this stage the statement of the witness recorded u/s 161 Cr.P.C. marked PW15/PX is read over to the witness to which he denies having made any such statement to the Police.
It is wrong to suggest that Police made an inquiry from my wife in my presence and thereafter arrested accused Vikas present in the Court today in my presence. It is wrong to suggest that I am deposing falsely as I have been won over by accused."
PW15 - Sh. AzizUlHasan was not crossexamined on 69 of 115 70 FIR No. 357/12 PS - Mukharjee Nagar behalf of accused despite grant of opportunity.
I have carefully perused and analysed the entire evidence on record.
PW3 - Prosecutrix during her crossexamination by the Learned Addl. PP for the state has deposed that : "It is correct that I was working as a maid servant in House No. 266, East, Bhai Parmanand Colony, 3rd Floor. It is correct that three boys Vikas, Bhupender (Yogender) and Anand were residing on the 3rd Floor."
From the aforesaid narration of PW3 - prosecutrix, it is clearly indicated that she was working as a maid servant in House No. 266, East, Bhai Parmanand Colony, 3rd Floor and that three boys Vikas, Bhupender (Yogender) and Anand were residing on the 3rd Floor.
The fact that House No. 266, 3rd Floor, East, Bhai Parmanand Colony was under the tenancy of PW5 - Sh. Anand, PW6 - Sh. Dipender and Yogender, where accused Vikas was also 70 of 115 71 FIR No. 357/12 PS - Mukharjee Nagar residing has also been proved by PW13 - Sh. Devender Kumar, Landlord of the said house.
PW13 - Sh. Devender Kumar, Landlord of the house, in his examinationinchief has specifically deposed that, 'He is the owner of House No. 266, 3rd Floor, East Parmanand Colony. He had given his above said house on rent to Dipender, Anand and Yogender for Rs. 12,000/ per month through Broker'.
PW5 - Sh. Anand in his examinationinchief has deposed that : "I am working as Constable in Delhi Police and at present posted in PS Chhawla. On 26/11/2012, I was residing as a tenant in House No. 266, Parmanand Colony, Delhi alongwith Dipender, Yogender & Vikas. We had taken the above said house on rent on 03/11/2012. We had employed a maid/prosecutrix (name withheld) in our room for Rs. 2,000/ per month. She used to cook our food and used to do other house hold work. On 26/11/2012, I had left my room at about 6:00/7:00 p.m. for my duty. Dipender had gone to discuss some matter with his friend at Mukherji Nagar as he was preparing for SSC Exam. Yogender was ill and he had gone to his house on 1718/11/2012. Accused Vikas, present in the Court was at the room. On next day, in the morning when I came in the room, the Police had came there and a quarrel has taken place between Vikas and prosecutrix (name withheld) and accused Vikas was 71 of 115 72 FIR No. 357/12 PS - Mukharjee Nagar arrested. There was a dispute regarding money between them. Police made inquiries from me."
(Underlined by me) From the aforesaid narration of PW5 - Sh. Anand, it is clearly indicated that on 26/11/2012, he was residing as a tenant in House No. 266, Parmanand Colony, Delhi alongwith Dipender, Yogender & accused Vikas and they had taken the above said house on rent on 03/11/2012. They had employed a maid/prosecutrix (name withheld) in their room for Rs. 2,000/ per month and she used to cook their food and used to do other house hold work. On 26/11/2012, only accused Vikas was present at the tenanted room.
PW6 - Sh. Dipender in his examinationinchief has deposed that : "I am a student. On 26/11/2012, I was residing as a tenant in House No. 266, Parmanand Colony, Delhi alongwith Anand, Yogender & Vikas. We had taken the above said house on rent on 03/11/2012. We had employed a maid/prosecutrix (name withheld) in our room for Rs. 2000/ per month. She used to cook our food and used to do other house hold work. On 26/11/2012, Anand had left the room at about 6:00/7:00 p.m. for his duty. I had gone to discuss some matter with my friend at Mukherji Nagar as I was preparing for SSC Exam. Yogender was ill and 72 of 115 73 FIR No. 357/12 PS - Mukharjee Nagar he had gone to his house on 1718/11/2012. Accused Vikas, present in the Court was at the room. On the same day, at about 10:00/10:30 p.m. when I came on the room Vikas told me that prosecutrix (name withheld) is quarreling on the payment/salary. Vikas further told me that he had given Rs. 2,000/ to her but she is demanding Rs. 3,000/. When we were eating food, Police came there and took the Vikas in the Police Station. On the next day, I had gone to my house."
(Underlined by me) From the aforesaid narration of PW6 - Sh. Dipender, it is clearly indicated that on 26/11/2012, he was residing as a tenant in House No. 266, Parmanand Colony, Delhi alongwith Anand, Yogender & accused Vikas and they had taken the above said house on rent on 03/11/2012 and they had employed a maid/prosecutrix (name withheld) in their room for Rs. 2,000/ per month. She used to cook their food and used to do other house hold work. On 26/11/2012, only accused Vikas was present at the tenanted room.
On a conjoint reading of the testimonies of PW5 - Sh. Anand and PW6 - Sh. Dipender, it stands clearly established on the record that Anand (PW5), Dipender (PW6), Yogender and accused Vikas 73 of 115 74 FIR No. 357/12 PS - Mukharjee Nagar were residing as a tenant in House No. 266, Parmanand Colony, Delhi since 03/11/2012 and they had employed a maid/prosecutrix (name withheld) in their room for Rs. 2,000/ per month and she used to cook their food and used to do other house hold work. On 26/11/2012, (on the date of alleged incident) only accused Vikas was present at the tenanted room.
In the circumstances, the part of testimony of PW3 - prosecutrix that, "A quarrel took place with Vikas who was residing in Parmanand Colony as I was working as a maid servant at his house. The quarrel took place as accused was paying Rs. 2,000/ per month to me instead of Rs. 3,000/ per month as agreed." does not inspire confidence since it has consistently been deposed by PW5 - Sh. Anand as well as PW6 - Sh. Dipender that they had employed a maid/prosecutrix (name withheld) in their room for Rs. 2,000/ per month and she used to cook their food and used to do other house hold work, then from where the question arose of paying her Rs. 3,000/ per month in place of Rs. 2,000/ per month.
74 of 115 75 FIR No. 357/12 PS - Mukharjee Nagar Moreover, even if it is taken for the sake of argument that there was any dispute with regard to quantum of amount payable to her per month for working as maid, then, PW3 - prosecutrix should have talked to PW5 - Sh. Anand, PW6 - Sh. Dipender and Yogender as she was employed by them all and not by accused Vikas only.
PW3 - prosecutrix during her examinationinchief has deposed that, "Accused Vikas has not committed anything with me nor he misbehaved with me", the said part of her testimony is falsified by the FSL Report Ex. PW17/A. Had there been no any act/activity done upon the PW3 - prosecutrix by accused Vikas, then the FSL Report Ex. PW17/A would not have indicated the detection of human semen on exhibit '1k1' (Rectal Examination of the prosecutrix), exhibit '1k2' (Rectal Examination of the prosecutrix), exhibit '2f' (Underwear of the prosecutrix), exhibit '3' (Underwear of the accused) & exhibit '6' (Bedsheet recovered from the place of incident).
75 of 115 76 FIR No. 357/12 PS - Mukharjee Nagar At the cost of repetition, as per the biological report Ex. PW17/A, prosecution has discharged its initial burden of proving the presence of Human semen on exhibit '1k1' (Rectal Examination of the prosecutrix seized vide seizure memo Ex. PW18/A, dated 27/11/2012, exhibit '1k2' (Rectal Examination of the prosecutrix seized vide seizure memo Ex. PW18/A, dated 27/11/2012, exhibit '2f' (Underwear of the prosecutrix) seized vide seizure memo Ex. PW18/A, dated 27/11/2012, exhibit '3' (Underwear of the accused) seized vide seizure memo Ex. PW8/B, dated 27/11/2012 & exhibit '6' (Bedsheet recovered from the place of incident) seized vide seizure memo Ex. PW3/B, dated 27/11/2012. Accused was under an obligation to explain how and under what circumstances, the Human semen came to be present on the said exhibits '1k1', '1k2', '2f', '3' & '6' as detailed hereinabove. The absence of such an explanation both in the section 313 Cr.P.C. statement of the accused Vikas and his omission to lead any evidence in this regard and his complete denial 76 of 115 77 FIR No. 357/12 PS - Mukharjee Nagar becomes an additional link in the prosecution case.
So far as the plea raised by the Learned Counsel for the accused that PW3 Prosecutrix has specifically stated in her examination inchief that she was cooking food at the house of the accused but 3/4 months back there took place quarrel with Vikas on the point of payment of her wages at Rs. 2,000/ per month instead of Rs. 3,000/ per month. She also said that she weeping because accused had threatened to remove her from the said job and went to the house of room partner of the accused Amitabh, who called the Police. PW3 specifically stated "Accused Vikas has not committed anything with me nor he misbehaved with me." and that PW5 Sh. Anand who was also a room partner of the applicant/accused did not at all support the story of the prosecution and he merely said that there was dispute of payment of the wages of the complainant. Likewise PW6 Dipender Singh was was another room partner also did not support the story of the prosecution and he said the dispute of payment of wages of the complainant and that likewise PW15 who is the husband of the complainant also denied of any such incident or crime to his wife i.e., complainant. PW15 denied in his cross 77 of 115 78 FIR No. 357/12 PS - Mukharjee Nagar examination by the Learned Addl. PP each and every suggestion put to him and he did not support all the case of the prosecution, are concerned, the same have been dealt with in extenso hereinabove and are found to have no substance in view of above analysis and discussion as on close scrutiny the case of the prosecution stands proved by clear, cogent and convincing evidence.
19. It is well settled that rape, is crime and not a medical condition. Rape is a legal term and not a diagnosis to be made by the medical officer treating the victim.
It is to be noticed that the opinion expressed by Modi in Medical jurisprudence and Toxicology (Twenty First Edition) at page 369 which reads as : "Thus to constitute the offence of rape it is not necessary that there should be complete penetration of penis with emission of semen and rupture of hymen. Partial penetration of the penis within the labia majora or the vulva or pudenda with or without emission of semen or even an attempt at penetration is quite possible to commit legally the offence of rape without producing any injury to the genitals or leaving 78 of 115 79 FIR No. 357/12 PS - Mukharjee Nagar any seminal stains. In such a case the medical officer should mention the negative facts in his report, but should not give his opinion that no rape had been committed. Rape, is crime and not a medical condition. Rape is a legal term and not a diagnosis to be made by the medical officer treating the victim. The only statement that can be made by the medical officer is that there is evidence of recent sexual activity. Whether the rape has occurred or not is a legal conclusion, not a medical one."
In Parikh's Textbook of Medical jurisprudence and Toxicology, the following passage is found : "Sexual intercourse : In law, this term is held to mean the slightest degree of penetration of the vulva by the penis with or without emission of semen. It is therefore quite possible to commit legally the offence of rape without producing any injury to the genitals or leaving any seminal stains."
In Encyclopedia of Crime and Justice (Vol. 4) at page 1356, it is stated : ".....even slight penetration is sufficient and emission is unnecessary."
On analysing the testimony of PW3 - Prosecutrix in the 79 of 115 80 FIR No. 357/12 PS - Mukharjee Nagar light of medical/gynecological examination vide MLC Ex. PW7/B of the prosecutrix, biological and serological evidence, DNA fingerprinting evidence together with the MLC of accused Vikas Ex. PW7/A, as discussed hereinbefore, an attempt to commit sexual intercourse activity by complete/partial penetration of the penis within rectum, labia majora or the vulva or pudenda stands proved.
In the circumstances, it stands clearly established on the record, of the performance of an attempt to commit sexual intercourse by accused Vikas with PW3 - Prosecutrix.
NOW LET THE REMAINING SUBMISSIONS/PLEAS RAISED BY THE LEARNED DEFENCE COUNSEL BE ANALYSED AND APPRECIATED
20. Learned Counsel for the accused submitted that PW3 Prosecutrix in her examinationinchief has stated that police had taken her in the hospital but she was not medically examined.
I have carefully perused and analysed the evidence on 80 of 115 81 FIR No. 357/12 PS - Mukharjee Nagar record.
It is a settled principle that statements of the witnesses have to be read as a whole and not in a manner to pick up a sentence in isolation from the entire statement and ignoring its proper reference.
It is settled legal proposition that the dependable part of the evidence of a hostile witness can be relied upon.
So far as the plea raised by the Learned Counsel for the accused that PW3 Prosecutrix in her examinationinchief has stated that police had taken her in the hospital but she was not medically examined, is concerned, on close scrutiny of the evidence, the fact regarding the medical examination of PW3 - Prosecutrix in the hospital vide MLC Ex. PW7/B stands proved on record.
At the cost of repetition PW7 Dr. Seema, Medical Officer, 81 of 115 82 FIR No. 357/12 PS - Mukharjee Nagar BJRM Hospital, Jahangir Puri, Delhi, in her examinationinchief has deposed that she has seen the MLC No. 50874 of prosecutrix (name withheld) W/o Asisul, Age 25 years, female who was brought to Hospital on 27/11/2012 at 1:00 a.m. with the alleged history of sexual assault. The patient was initially examined by Dr. Santosh, J.R. and on local examination no fresh injury were seen. Thereafter, patient was referred to S.R. Gynae whereupon patient was examined by Dr. Seema, S.R. Gynae and on per vagina examination : hymen torn, old tear, admits two finger easily. At present Dr. Santosh and Dr. Seema, S.R. (Gynae) are not working in their Hospital and there present whereabouts are not known as per record. She is acquainted with their handwriting and signatures as she has seen them while writing and signing during the course of her duty. The MLC of prosecutrix (name withheld) is Ex. PW7/B, bearing the signature of Dr. Santosh at point 'A' and of Dr. Seema at point 'B'.
Despite grant of opportunity, PW7 Dr. Seema was not crossexamined on behalf of the accused.
82 of 115 83 FIR No. 357/12 PS - Mukharjee Nagar PW18 W/Ct. Anju during her examinationinchief has interalia deposed which is reproduced and reads as under : "I alongwith victim/prosecutrix (name withheld) and IO SI Raj Bala reached BJRM Hospital, Jahangir Puri and got the medical examination of the victim. After medical examination Doctor had handed over two sealed pullindas alongwith the sample seal of the Hospital to the IO and the same were seized by the IO vide memo now Ex. PW18/A bearing my signatures at Point 'A'. Thereafter, we all returned to the spot."
(Underlined by me) "I alongwith prosecutrix (name withheld), W/Ct. Anju and Ct. Sandeep went to BJRM Hospital, Jahangir Puri, Delhi by government vehicle. I got conducted the medical examination of the prosecutrix (name withheld). Doctor handed over two sealed packets alongwith sample seal to me which were taken into police possession vide seizure memo already Ex. PW12/A (be read as Ex. PW18/A), which bears my signature at point B."
(Underlined by me) There is nothing in the crossexamination of PW18 W/Ct. Anju and PW21 SI Raj Bala, IO so as to impeach their creditworthiness.
In the circumstances there is no substance in the plea so raised by the Learned Counsel for the accused.
83 of 115 84 FIR No. 357/12 PS - Mukharjee Nagar
21. Learned Counsel for accused submitted that Police failed to produce and identified from the PW3 the alleged seized clothes of the complainant, as the prosecution story relies upon the alleged underwear of the complainant which was allegedly sent for DNA examination. Since no such alleged clothes of the complainant were produced for identifying the same during her examination, therefore, in the absence of the identification of the said alleged clothes seized, the prosecution has miserably failed to prove the alleged seizure memos Ex. PW3/B, PW3/C and PW3/D. I have carefully perused and analysed the evidence on record.
It is a settled principle that statements of the witnesses have to be read as a whole and not in a manner to pick up a sentence in isolation from the entire statement and ignoring its proper reference.
84 of 115 85 FIR No. 357/12 PS - Mukharjee Nagar The fact regarding the medical examination of PW3 Prosecutrix in the hospital vide MLC Ex. PW7/B stands proved on the record by PW7 Dr. Seema, Medical Officer, BJRM hospital and the testimonies of PW18 W/Ct. Anju and PW21 SI Raj Bala, IO, who took the prosecutrix for her medical examination in the hospital, have also been discussed hereinbefore.
At the cost of repetition, PW7 Dr. Seema, Medical Officer, BJRM Hospital, Jahangir Puri, Delhi, in her examinationinchief has deposed that she has seen the MLC No. 50874 of prosecutrix (name withheld) W/o Asisul, Age 25 years, female who was brought to Hospital on 27/11/2012 at 1:00 a.m. with the alleged history of sexual assault. The patient was initially examined by Dr. Santosh, J.R. and on local examination no fresh injury were seen. Thereafter, patient was referred to S.R. Gynae whereupon patient was examined by Dr. Seema, S.R. Gynae and on per vagina examination : hymen torn, old tear, 85 of 115 86 FIR No. 357/12 PS - Mukharjee Nagar admits two finger easily. At present Dr. Santosh and Dr. Seema, S.R. (Gynae) are not working in their Hospital and there present whereabouts are not known as per record. She is acquainted with their handwriting and signatures as she has seen them while writing and signing during the course of her duty. The MLC of prosecutrix (name withheld) is Ex. PW7/B, bearing the signature of Dr. Santosh at point 'A' and of Dr. Seema at point 'B'.
Despite grant of opportunity, PW7 Dr. Seema was not crossexamined on behalf of the accused.
PW18 W/Ct. Anju during her examinationinchief has interalia deposed which is reproduced and reads as under: "......I alongwith victim/prosecutrix (name withheld) and IO SI Raj Bala reached BJRM Hospital, Jahangir Puri and got the medical examination of the victim. After medical examination Doctor had handed over two sealed pullindas alongwith the sample seal of the Hospital to the IO and the same were seized by the IO vide memo now Ex. PW18/A bearing my signatures at Point 'A'. Thereafter, we all returned to the spot." Accused was sent for the medical examination.
86 of 115 87 FIR No. 357/12 PS - Mukharjee Nagar Rukka was prepared by the IO and was sent to the PS through Constable Sandeep for the registration of the FIR. Site plan was prepared. IO had seized the exhibits from the spot. One bedsheet in a cloth pullinda was sealed with the seal of 'RB' and was taken into possession vide memo already Ex. PW3/B bearing my signature at Point 'B'. IO had seized two packets of condoms from the spot vide memo already Ex. PW8/A. Constable Sandeep returned to the spot with the copy of FIR and rukka and returned the same to the IO. In the night accused Vikas was arrested vide arrest memo already Ex. PW3/C bearing my signature at Point 'B'. Personal search of accused was also conducted vide memo already Ex. PW3/D bearing my signature at Point 'B'. Disclosure statement of accused Vikas already Ex. PW3/E was recorded and the same is bearing my signature at Point 'B'. They returned to the Police Station with the accused and the accused was kept in the lockup.
I can identify the case property, if shown to me. At this stage, MHC(M) has produced parcel no. 6 bearing court seal and same is opened up and is found containing one bedsheet of greenmaroon colour print. Witness identified the same correctly which was seized from spot. BedSheet is already Ex. P1.
At this stage, MHC(M) has produced pullinda sealed with the court seal and same is opened up and found containing two packets of condoms. Witness identifies the same correctly which was seized from the spot. Condoms are already Ex. P2 (Colly)."
(Underlined by me) 87 of 115 88 FIR No. 357/12 PS - Mukharjee Nagar PW19 - SI Madan Lal during his examinationinchief has interalia deposed which is reproduced and reads as under: "There were two condoms (packed) which were lying on the bedsheet were lifted by IO from the bedsheet and same were taken into police possession by IO from the bedsheet and same were taken into police possession by IO vide seizure memo Ex. PW8/A bearing my signature at PointA. Prosecutrix (name withheld) pointed out towards the bedsheet to commit rape upon her. IO SI Raj Bala lifted the bedsheet which was spread over the mattress lying on the floor (farsh par gadde par bichi hoi chadar ko uthaya) . IO SI Raj Bala prepared a cloth parcel of this bedsheet and sealed it with the seal of 'RB' and this parcel was taken into police possession vide seizure memo Ex. PW3/B bearing my signature at PointC."
(Underlined by me) "I can identify the case property, if shown to me. At this stage, MHC(M) has produced the case property out of which two parcels bearing the court seal are opened. The first parcel is containing one bedsheet of green maroon colour print, same is shown to the witness, who identifies the same correctly by stating that this is the same bedsheet seized by IO from the spot. The bedsheet is already Ex.P1.
The second parcel is found containing two packets of condoms, same are shown to the witness, who identifies the same correctly by stating that these packets of condoms already Ex. P2."
88 of 115 89 FIR No. 357/12 PS - Mukharjee Nagar (Underlined by me) PW21 - SI Raj Bala, IO during her examinationinchief has interalia deposed which is reproduced and reads as under: "I alongwith prosecutrix (name withheld), W/Ct. Anju and Ct. Sandeep went to BJRM Hospital, Jahangir Puri, Delhi by government vehicle. I got conducted the medical examination of the prosecutrix (name withheld). Doctor handed over two sealed packets alongwith sample seal to me which were taken into police possession vide seizure memo already Ex. PW12/A (be read as Ex. PW18/A), which bears my signature at point B."
"I lifted the bedsheet and the packets of condoms from the spot and there were two separate packets and these were sealed with the seal of RB. Two parcels were taken into police possession vide two separate seizure memos already exhibited as Ex.PW3/B and Ex.PW8/A, bearing my signature at point B."
"I can identify case property i.e bedsheet and condoms, if shown to me.
At this stage, it is observed that the case property i.e bed sheet and condom have already been exhibited during examination of PW19 SI Madan Lal as Ex.P1 & Ex. P2."
(Underlined by me) 89 of 115 90 FIR No. 357/12 PS - Mukharjee Nagar There is nothing in the crossexamination of PW18 W/Ct. Anju, PW19 SI Madan Lal and PW21 SI Raj Bala, IO so as to impeach their creditworthiness. There is also nothing in their statements to suggests that they had any animus against the accused to falsely implicate him in the case. They have deposed the fact as to what they acted, observed and experienced during the course of investigation.
During her crossexamination conducted by the Learned Addl. PP for the State PW3 Prosecutrix has deposed that: "It is wrong to suggest that my clothes were seized in the hospital and I am deposing falsely in this regard. Police had not seized any bed sheet in my presence. It is wrong to suggest that police had seized the bed sheet from the room of accused Vikas and my signature was obtained on the memo. However, seizure memo Ex.PW3/B bears my signature at PointA. It is correct that arrest memo of accused Vikas which is Ex. PW3/C. Personal search memo Ex. PW3/D and disclosure statement Ex. PW3/E bear my signature at pointA. It is also correct that site plan Ex. PW3/F also bears my signature at pointA.....".
(Underlined by me) 90 of 115 91 FIR No. 357/12 PS - Mukharjee Nagar From above, though PW3 Prosecutrix was denying the factum of seizure of her clothes in the hospital yet the factum of seizure of her clothes as well as the sexual assault kit in the hospital otherwise on close scrutiny of evidence on record stands proved on the record vide seizure memo Ex. PW18/A. PW3 Prosecutrix has not denied her signature at PointA on the seizure memo of the bedsheet Ex. PW3/B. Though she (PW3 Prosecutrix) was denying the factum of seizure of bedsheet from the room of accused Vikas yet the factum of the seizure of the bedsheet (Ex. P1) otherwise on close scrutiny of evidence on record stands proved on record vide seizure memo Ex. PW3/B. The Biological and Serological Evidence as well as the DNA Fingerprinting Evidence reproduced, discussed and analysed hereinbefore do not merely relate to the cloth of the prosecutrix but also to the other exhibits of the prosecutrix as well as of the accused Vikas as detailed therein inclusive of the bedsheet (Ex. P1) seized vide seizure memo Ex. PW3/B, in the circumstances, non putting of cloth for identification to PW3 Prosecutrix does not falsify the case of the prosecution which is otherwise on close scrutiny stands proved on record by clear, cogent and convincing evidence.
91 of 115 92 FIR No. 357/12 PS - Mukharjee Nagar At the cost of repetition, as per the biological report Ex.
PW17/A , prosecution has discharged its initial burden of proving the presence of Human semen on exhibit '1k1' (Rectal Examination of the prosecutrix) seized vide seizure memo Ex. PW18/A, dated 27/11/2012 , exhibit '1k2' (Rectal Examination of the prosecutrix) seized vide seizure memo Ex. PW18/A, dated 27/11/2012 , exhibit '2f' (Underwear of the prosecutrix) seized vide seizure memo Ex.
PW18/A, dated 27/11/2012 , exhibit '3' (Underwear of the accused) seized vide seizure memo Ex. PW8/B, dated 27/11/2012 ) & exhibit '6' (Bedsheet recovered from the place of incident) seized vide seizure memo Ex. PW3/B, dated 27/11/2012 . Accused was under an obligation to explain how and under what circumstances, the Human semen came to be present on the said exhibits '1k1', '1k2', '2f', '3' & '6' as detailed hereinabove. The absence of such an explanation both in the section 313 Cr.P.C. statement of the accused Vikas and his omission to lead any evidence in this regard and his complete denial 92 of 115 93 FIR No. 357/12 PS - Mukharjee Nagar becomes an additional link in the prosecution case.
(Underlined by me) per DNA At the cost of repetition, as Report/FSL2014/ DNA5074 Ex. PW20/B, dated 30/09/2014, it is clearly indicated that the alleles from the source of exhibit '1' (Blood sample in gauze of accused Vikas vide FSL 2014/DNA5074 ), are accounted in the alleles from the source of exhibits '1k1' & '1k2' (Microslides of victim vide FSL No -
2012/B8357 ) and '2f' (Underwear of victim vide FSL No - 2012/B8357). DNA Profiling (STR analysis) performed on the source of exhibit '1' (Blood sample in gauze of accused Vikas vide FSL 2014/DNA5074 ), '1k1' & '1k2' (Microslides of victim vide FSL No
- 2012/B8357 ), '1m' (Blood sample of victim vide FSL No -
2012/B8357 ) and '2f' (Underwear of victim vide FSL No - 2012/B8357) is sufficient to conclude that DNA profile from the source of exhibit '1' (Blood sample in gauze of accused Vikas vide FSL2014/DNA5074 ) is similar with DNA profile from the source of exhibits '1k1' & '1k2' (Microslides of victim vide FSL No -
2012/B8357 ) and '2f' (Underwear of victim vide FSL No -
93 of 115 94 FIR No. 357/12 PS - Mukharjee Nagar 2012/B8357).
(Underlined by me) In the circumstances, there is no substance in the plea so raised by the Learned Counsel for the accused.
22. Learned Counsel for the accused submitted that even in the MLC of the prosecutrix it has been alleged that the patient does not name, of the boy who committed alleged assault, and on the other hand, it is the story of the prosecution that the complainant was working as maid servant at the house of the accused and she knew the accused very well since last several months.
I have carefully perused and analysed the evidence on record.
On careful perusal of the MLC Ex. PW7/B of PW3 Prosecutrix it is interalia found mentioned in the alleged history, "Brought by police for examination. Patient gives H/O Rape, sexual 94 of 115 95 FIR No. 357/12 PS - Mukharjee Nagar assault by some boy name (Patient does not know) where she cooks".
So far as the plea raised by the Learned Counsel for the accused that, even in the MLC of the prosecutrix it has been alleged that the patient does not name, of the boy who committed alleged assault, and on the other hand, it is the story of the prosecution that the complainant was working as maid servant at the house of the accused and she knew the accused very well since last several months, is concerned, non mentioning of the name of the boy in the alleged history in the MLC, who committed the alleged sexual assault, does not falsify the case of the prosecution which is otherwise proved on the record by clear, cogent and convincing evidence.
In case "Noor Salam Vs. State (Govt. of NCT of Delhi)", 2013 II AD (Cri.) (DHC) 322 it has been held that it is not mandatory for Doctor to record in MLC or to make enquiry from injured about name of assailant. Generally Doctors on duty do not ask for assailant's name. Omission of injured to disclose assailant's name to Doctor does not discredit her testimony.
95 of 115 96 FIR No. 357/12 PS - Mukharjee Nagar It is also evident from the record that during the cross examination of PW3 prosecutrix the said accused did not voice his concern or raised any apprehension on the aspect regarding which the plea has been raised "of nonmentioning of the name of the boy, in the alleged history given by her (PW3 Prosecutrix) at the time of her medical examination, who committed the alleged sexual assault upon her". She was the only competent witness, who would have been fully capable of explaining correctly the factual situation. For failure to do so accused is to blame himself and none else.
Recently in case 'Mahavir Singh Vs. State of Haryana', (2014) 6 SCC 716, the Hon'ble Supreme Court has observed that it is settled legal proposition that in case the question is not put to the witness in crossexamination who could furnish explanation on a particular issue, the correctness or legality of the said fact/issue could not be raised.
In the circumstances, there is no substance in the plea so 96 of 115 97 FIR No. 357/12 PS - Mukharjee Nagar raised by the Ld. Counsel for the accused.
23. Learned Counsel for the accused submitted that even the MLC of the prosecutrix does not mention of any attempt to rape or any other offence with the complainant.
I have carefully perused and analysed the evidence on record.
PW7 Dr. Seema, Medical Officer, BJRM hospital, has proved the medical/gynecological examination of PW3 Prosecutrix as was conducted by Dr. Santosh and Dr. Seema vide MLC Ex. PW7/B bearing the signature of Dr. Santosh at PointA and of Dr. Seema at PointB, as discussed and analysed hereinbefore.
On careful perusal of the MLC Ex. PW7/B of PW3 Prosecutrix it is interalia found mentioned in the alleged history, "Brought by police for examination. Patient gives H/O Rape, sexual assault by some boy name (Patient does not know) where she cooks".
97 of 115 98 FIR No. 357/12 PS - Mukharjee Nagar So far as the plea raised by the Learned Counsel for the accused that, even the MLC of the prosecutrix does not mention of any attempt to rape or any other offence with the complainant, is concerned, nonmentioning of any attempt to rape or any other offence with the complainant in the MLC does not falsify the case of the prosecution as the duty of the doctor treating the victim is only to give the report regarding the medical examination conducted of the victim, by him and not to give his opinion as to what offence/s has been committed with the victim.
It is well settled that rape, is crime and not a medical condition. Rape is a legal term and not a diagnosis to be made by the medical officer treating the victim.
It is to be noticed, the opinion expressed by Modi in Medical jurisprudence and Toxicology (Twenty First Edition) at page 369 which reads as : 98 of 115 99 FIR No. 357/12 PS - Mukharjee Nagar "Thus to constitute the offence of rape it is not necessary that there should be complete penetration of penis with emission of semen and rupture of hymen. Partial penetration of the penis within the labia majora or the vulva or pudenda with or without emission of semen or even an attempt at penetration is quite possible to commit legally the offence of rape without producing any injury to the genitals or leaving any seminal stains. In such a case the medical officer should mention the negative facts in his report, but should not give his opinion that no rape had been committed. Rape, is crime and not a medical condition. Rape is a legal term and not a diagnosis to be made by the medical officer treating the victim. The only statement that can be made by the medical officer is that there is evidence of recent sexual activity. Whether the rape has occurred or not is a legal conclusion, not a medical one."
(Underlined by me) In the circumstances, there is no substance in the plea so raised by the Ld. Counsel for the accused.
24. Learned Counsel for the accused submitted that testimony of PW7 Dr. Seema was not trustworthy to prove the alleged MLC and examination of the complainant and the accused on the basis of alleged MLCs as according to her own version the complainant and the accused 99 of 115 100 FIR No. 357/12 PS - Mukharjee Nagar were allegedly examined by Dr. Jasneet and Dr. Gagan J.R. but the said doctors were not produced in the witness box by the prosecution and in this way the said MLCs were not proved by the prosecution.
I have carefully perused and analysed the evidence on record.
Section 47 of Indian Evidence Act, 1872 provides for opinion as to handwriting, when relevant. It reads as under : "47. Opinion as to handwriting, when relevant. When the Court has to form an opinion as to the person by whom any document was written or signed, the opinion of any person acquainted with the handwriting of the person by whom it is supposed to be written or signed that it was or was not written or signed by that person, is a relevant fact.
Explanation. A person is said to be acquainted with the handwriting of another person when he has seen that person write, or when he has received documents purporting to be written by that person in answer to documents written by himself or under his authority and addressed to that person, or when in the ordinary course of business, documents purporting to be written by that person have been habitually 100 of 115 101 FIR No. 357/12 PS - Mukharjee Nagar submitted to him."
From above, it is clearly indicated that the opinion of any person acquainted with the handwriting of the person by whom any documents was written or signed, is a relevant fact. As per the explanation, a person is said to be acquainted with the handwriting of another person when he has seen that person write.
PW7 - Dr. Seema, Medical Officer, BJRM hospital, in her examinationinchief has specifically deposed which is reproduced and reads as under : "At present Dr. Gangan, Dr. Jasneet, Dr. Santosh and Dr. Seema S.R. (Gynae) are not working in our hospital and there present whereabouts are not known as per record. I am acquainted with their handwriting and signatures as I have seen them while writing and signing during the course of my duty."
From the aforesaid narration of PW7 - Dr. Seema, it is clearly indicated that she is acquainted and conversant with the 101 of 115 102 FIR No. 357/12 PS - Mukharjee Nagar handwriting and signatures of Dr. Gangan, Dr. Jasneet, Dr. Santosh and Dr. Seema S.R. (Gynae) as she had seen them writing and signing during the usual course of her duty.
In the circumstances, PW7 - Dr. Seema being acquainted with the handwriting and signatures of Dr. Gangan, Dr. Jasneet, Dr. Santosh and Dr. Seema S.R. (Gynae) as she had seen them writing and signing during the usual course of her duty has proved the MLC of accused Vikas Ex. PW7/A bearing signature of Dr. Gagan at PointA and of Dr. Jasneet at PointB and has proved the MLC of prosecutrix (name withheld) Ex. PW7/B bearing the signature of Dr. Santosh at PointA and of Dr. Seema at PointB. In the circumstances, there is no substance in the plea so raised by the Ld. Counsel for the accused.
25. Learned Counsel for the accused submitted that the whole of the story as made out by the prosecution is unbelievable and untrustworthy as it is apparent that no public person or any independent witness was produced.
102 of 115 103 FIR No. 357/12 PS - Mukharjee Nagar I have carefully perused and analysed the evidence on record.
The prosecution can be expected to examine only those who have witnessed the events and not those who have not seen it. Though, the neighbourhood may be replete with other residents also.
In case 'State of Rajasthan Vs. Teja Ram & Ors.', AIR 1999 SC 1776, the Hon'ble Supreme Court has held that : "The overinsistence on witnesses having no relation with the victims often results in criminal justice going away. When any incident happens in a dwelling house, the most natural witnesses would be the inmates of that house. It is unpragmatic to ignore such natural witnesses and insist on outsiders who would not have even seen anything. If the Court has discerned from the evidence or even from the investigation records that some other independent person has witnessed any event connecting the incident in question, then there is a justification for making adverse comments against nonexamination of such a person as a prosecution witness. Otherwise, merely on surmises the Court should not castigate the prosecution for not examining other persons of the locality as prosecution witnesses. The prosecution can be expected 103 of 115 104 FIR No. 357/12 PS - Mukharjee Nagar to examine only those who have witnessed the events and not those who have not seen it though the neighbourhood may be replete with other residents also."
As regards the plea raised by the Learned Counsel for the accused that, the whole of the story as made out by the prosecution is unbelievable and untrustworthy as it is apparent that no public person or any independent witness was produced, is concerned, it is evident from the record that during the crossexamination of PW21 - SI Raj Bala, IO, the said accused did not voice his concern or raised any apprehension on the aspect regarding which the plea has been raised. She was the only competent witness who would have been fully capable of explaining correctly the factual situation. For failure to do so, accused is to blame himself and none else.
At the cost of repetition, recently in case 'Mahavir Singh Vs. State of Haryana', (2014) 6 SCC 716, the Hon'ble Supreme Court has observed that it is settled legal proposition that in case the question is not put to the witness in crossexamination who could furnish explanation on a particular issue, the correctness or legality of the said 104 of 115 105 FIR No. 357/12 PS - Mukharjee Nagar fact/issue could not be raised.
Nonjoining of the public witness does not falsify the case of the prosecution which is otherwise proved on record by clear, cogent and convincing evidence.
It is a matter of common experience that public persons are reluctant to assist the Police in the investigation.
In case Nirmal Singh & Ors. Vs. State 2011 III AD (DELHI) 699, the Hon'ble Delhi High Court has held that : "It is a known fact that the persons of the public are reluctant to join the Police in the investigation of any case as they do not want to undertake unpleasant task of attending the Police Station and the Court for giving evidence."
The mere fact of nonjoining a public witness, will not ipso facto make the evidence of the Police witnesses suspect, unreliable or untrustworthy (Ref. 'Abdul Mura Salim Vs. State' 2005 (8) JCC 1776).
105 of 115 106 FIR No. 357/12 PS - Mukharjee Nagar In the circumstances, there is no substance in the plea so raised by the Ld. Counsel for the accused.
26. Learned Counsel for accused referred to the cases and are reported as "Raghunath Vs. State of Rajasthan" 2013(4) CCC 121 (Rajasthan); Deepak Chadha Vs. State, 2012(1) JCC 540; Kalloo Passi Vs. State 2009 [2] JCC 1206; Narsinbhai Haribhai Prajapati Vs. Chhatrasinh & Ors. AIR 1977 S.C 1753; Surjit Singh & Anr. Vs. State of Punjab AIR 1994 S.C 110; Deva Vs. State of Rajasthan 1999 CRI. L.J. 265 (SC); Prabhoo Vs. State of Uttar Pradesh AIR 1963 S.C 1113 and Arshad Vs. State of Haryana 2011(1) CCC 536 (P&H).
I have carefully gone through the same. With due respect there is no dispute as to what has been held therein but the same are wholly distinguishable in view of the peculiar facts and nature of evidence adduced in the instant case. In case titled Sunil Kumar Vs. State 181 (2011) DLT 528(DB) it was held that "No case can strictly be a precedent in a criminal matter for the reason no two criminal trials would unfold the same story and the same evidence. Thus, a decision 106 of 115 107 FIR No. 357/12 PS - Mukharjee Nagar cited pertaining to the desination reached at a particular criminal voyage has to be carefully applied, on a principle of law, in a subsequent voyage".
27. In view of above and in the circumstances, prosecution has thus categorically proved beyond shadows of all reasonable doubts that on 26/11/2012, at about 8.30 p.m. in room near Balcony at House No. 266, 3rd Floor, East Bhai Parmanand Colony, accused Vikas attempted to commit rape upon PW3 prosecutrix, aged around 25 years.
I accordingly hold accused Vikas guilty for the offence punishable u/s 376/511 IPC and convict him thereunder.
28. In view of above discussion, I am of the considered opinion that as far as the involvement of the accused Vikas in the commission of the offence u/s 376/511 IPC is concerned, the same is sufficiently established by the cogent and reliable evidence and in the ultimate analysis, the prosecution has been able to bring the guilt home to the accused Vikas beyond shadows of all reasonable doubts and there is no 107 of 115 108 FIR No. 357/12 PS - Mukharjee Nagar room for hypothesis, consistent with that of innocence of accused. I, therefore, hold accused Vikas guilty for the offence punishable u/s 376/511 IPC and convict him thereunder.
Announced in the open Court (MAHESH CHANDER GUPTA) on 24th Day of November, 2015 Additional Sessions Judge Special Fast Track Court (North District), Rohini, Delhi 108 of 115 109 FIR No. 357/12 PS - Mukharjee Nagar IN THE COURT OF SH. MAHESH CHANDER GUPTA :
ADDITIONAL SESSIONS JUDGE : SPECIAL FAST TRACK COURT: NORTH DISTRICT : ROHINI : DELHI SESSIONS CASE NO. : 216/13 Unique ID No. : 02404R0039062013 State Vs. Vikas S/o Sh. Jai Parkash R/o Village Swaroop Garh, PS - Dadri, District - Bhiwani, Haryana.FIR No. : 357/12
Police Station : Mukharjee Nagar Under Section : 376/511 IPC ORDER ON SENTENCE :
1. Vide my separate detailed judgment dated 24/11/2015 accused Vikas has been convicted for the offence punishable u/s 376/511 IPC.
2. Shri Sanjay Rathi, Learned Counsel for the convict Vikas submitted that convict Vikas is 27 years of age and unmarried. He is
109 of 115 110 FIR No. 357/12 PS - Mukharjee Nagar Graduate and was preparing for various competitive examinations. He further submitted that he is having the old parents to lookafter, who are suffering from various old age related ailments and he is the only son in the family. He is having one sister, who has since been married off. He further submitted that he is running in Judicial Custody (JC) and had also remained for about 20 days in JC and is not involved in any other case and is having clean antecedents and is not a previous convict and his conduct during the trial was very cooperative and he is the victim of the circumstances and prayed for leniency and for releasing him on probation. He referred to the cases and are reported as 'Saradhakar Sahu Vs. State of Orissa' 1985 CrilJ1591 (High Court of Orissa)' and 'Ramashraya Chakravarti Vs. State of Madhya Pradesh' (1976)1SCC281.
3. On the other hand, Sh. Ashok Kumar, Learned Addl. PP for State submitted that seeing the gravity of the offence, the convict be dealt with strictly and severest punishment be given to deter him from committing the same offence in future and no leniency be shown to him.
4. I have heard the Learned Addl. PP for the State and the 110 of 115 111 FIR No. 357/12 PS - Mukharjee Nagar Learned Counsel for the convict Vikas on the quantum of sentence at length. That on 26/11/2012, at about 8.30 p.m. in room near Balcony at House No. 266, 3rd Floor, East Bhai Parmanand Colony, convict Vikas attempted to commit rape upon PW3 prosecutrix, aged around 25 years.
5. Learned Counsel for convict Vikas referred to the cases and are reported as 'Saradhakar Sahu Vs. State of Orissa' 1985 CrilJ1591 (High Court of Orissa)' and 'Ramashraya Chakravarti Vs. State of Madhya Pradesh' (1976)1SCC281.
I have carefully gone through the same. With due respect there is no dispute as to what has been held therein but the same are wholly distinguishable in view of the peculiar facts and nature of evidence adduced in the instant case. In case titled Sunil Kumar Vs. State 181 (2011) DLT 528(DB) it was held that "No case can strictly be a precedent in a criminal matter for the reason no two criminal trials would unfold the same story and the same evidence. Thus, a decision cited pertaining to the desination reached at a particular criminal voyage has to be carefully applied, on a principle of law, in a 111 of 115 112 FIR No. 357/12 PS - Mukharjee Nagar subsequent voyage".
6. It has been held by the Hon'ble Apex Court in Sahdev Vs. Jaibar @ Jai Dev & Ors. 2009 V AD (S.C.) 515 that : "After giving due consideration to the facts and circumstances of each case, for deciding just and appropriate sentence to be awarded for an offence, the aggravating and mitigating factors and circumstances in which a crime has been committed are to be delicately balanced on the basis of really relevant circumstances in a dispassionate manner by the Court. Such act of balancing is indeed a difficult task".
7. It has been held in 'State of Karnataka Vs. Murlidhar', 2009 IV AD (S.C.) 1 that : "The object should be to protect the society and to deter the criminal in achieving the avowed object of law by imposing appropriate sentence. It is expected that the Courts would operate the sentencing system so as to impose such sentence which reflects the conscience of the society and the sentencing process has to be stern where it should be. The court will be failing in its duty if appropriate punishment is not awarded for a crime which has been committed not only against the individual victim but also against the society to which the criminal and victim belong. The punishment to be awarded for a crime must not be irrelevant but it should conform to and be consistent with the atrocity and brutality with which the crime has been perpetrated, the enormity of the crime warranting public abhorrence and it should "respond to the society's cry for justice against the criminal".
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8. In 'Mulla & Anr. Vs. State of Uttar Pradesh, (2010) 3 SCC 508, after considering various earlier decision, the Hon'ble Supreme Court held as under : "It is settled legal position that the punishment must fit the crime. It is the duty of the Court to impose proper punishment depending upon the degree of criminality and desirability to impose such punishment. As a measure of social necessity and also as a means of deterring other potential offenders, the sentence should be appropriate be fitting the crime".
9. In 'Pushpanjali Sahu Vs. State of Orissa', (2012) 9 SCC 705 in para 12, the Hon'ble Supreme Court has held as under : "Sexual violence is not only an unlawful invasion of the right of privacy and sanctity of a woman but also a serious blow to her honour. It leaves a traumatic and humiliating impression on her conscienceoffending her selfesteem and dignity. Rape is not only a crime against the person of a woman, but a crime against the entire society. It indelibly leaves a scar on the most cherished possession of a woman i.e. her dignity, honour reputation and not the least her chastity. It destroys the entire psychology of a woman and pushes her into deep emotional crisis. It is crime against basic human rights, and is also violative of the victim's most cherished of the fundamental rights, namely the right of life contained in Article 21 of the Constitution. The 113 of 115 114 FIR No. 357/12 PS - Mukharjee Nagar 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" (Para 12).
10. Having regard to all the facts and circumstances of the case coupled with the submissions made on behalf of the convict and after delicately balancing and giving due consideration to the facts and circumstances, the aggravating and mitigating factors and circumstances in which the offence had been committed, I am of the considered opinion that it is not a fit case for grant of probation and that the ends of justice can be met by sentencing convict Vikas to undergo Rigorous Imprisonment for a period of five years and to pay a fine of Rs. 20,000/ in default thereof to further undergo Simple Imprisonment for a period of one year u/s 376/511 IPC. The period already undergone by the convict Vikas during the inquiry/ investigation/ trial of this case shall be set off under section 428 Cr.P.C.
A copy of judgment as well as that of order on sentence be given to the convict free of costs.
114 of 115 115 FIR No. 357/12 PS - Mukharjee Nagar Announced in the open Court (MAHESH CHANDER GUPTA) on 28th Day of November, 2015 Additional Sessions Judge Special Fast Track Court (North District), Rohini, Delhi 115 of 115