Delhi District Court
State vs . Danish on 19 December, 2015
1
FIR No. 822/14
PS - Mahendra Park
IN THE COURT OF SH. MAHESH CHANDER GUPTA :
ADDITIONAL SESSIONS JUDGE : SPECIAL FAST TRACK
COURT : NORTHWEST DISTRICT : ROHINI : DELHI
SESSIONS CASE NO. : 17/15
Unique ID No. : 02404R0034432015
State Vs. Danish
S/o Sh. Mozi Miyan
R/o WZ - 48A, Mother Dairy,
Near Mohan Medical Store,
Village Shakur Pur,
Delhi - 110053.
FIR No. : 822/14
Police Station : Mahendra Park
Under Sections : 376/328/324/344/366 IPC
Date of committal to session Court : 30/01/2015
Date on which judgment reserved : 15/12/2015
Date on which judgment announced : 19/12/2015
J U D G M E N T
1 of 39 2 FIR No. 822/14 PS - Mahendra Park
1. Briefly stated the case of the prosecution as unfolded by the report under section 173 Cr.P.C. is as under : That on 09/12/2014 prosecutrix (name withheld being a case u/s 376 IPC) D/o Mohd. Anis, R/o Flat No. 288, Sanjay Enclave, Jahangir Puri, Delhi, with her brother Shokeen came to the PS Mahendra Park and met ASI Sarla and made the statement which is to the effect that, she lives at the above address on rent with her family and does the household work. She for the last five to six months used to talk with one boy Danish on phone and during this met him three/four times. On 25/11/2014 at about 4:15 p.m. in the evening by making a call to her from mobile phone no. 8285367682 he called her that he is standing at Gate No. 3 of Sanjay Enclave and he has brought 'water' from Dargah for her. She went to Gate No. 3 and Danish was standing alone outside a black colour vehicle, in which two boys aged 25, 26 years were sitting. Danish made her drink 'water' while she was standing outside and she does not know what happened thereafter. At about 7:30 p.m. in the evening when her eyes opened (Meri Ankhein Khuli), she found herself in a room and found that no clothes were there on her body and she was feeling pain at the place of urination, when she asked him (Danish) as to 2 of 39 3 FIR No. 822/14 PS - Mahendra Park where she has been brought by him and what he has done with her and she is to go to her house, on which he said, for the work for which she had been brought by him, he has done that work and now she go any where (mae jis kaam kae liye tujhe lekar aaya tha wo mera kaam ho gaya ab tou kahi par bhee ja), he during this committed 'rape' upon her 3/4 times without her consent and he also gave slapping to her a few times and he also inflicted injuries with blade on her both hands. On 04/12/2014, Danish had gone somewhere outside and at about 5:00 p.m. in the evening she came out from there and she from her mobile phone no. 7532939663 which he had thrown upon her while slapping her, telephoned her brother and told him that she is standing near Masjid, Shalimar Bagh. After sometime her brothers Shokeen, Mehmood and Salim came there and she came to her house with her brothers. Today on 09/12/2014 she alongwith her brother Shokeen has come to Police Station to lodge a report that Danish after making her drink intoxicating water and after taking her at unknown place without her consent and after closing her in a room has committed rape upon her. Legal action be taken against him. On the basis of the statement finding that offences u/s 328/342/365/376 IPC appeared to have been committed, the case was got 3 of 39 4 FIR No. 822/14 PS - Mahendra Park registered and the investigation was got proceeded with by ASI Sarla. During the course of investigation counseling of prosecutrix was done through Sampoorna NGO. Medical examination of the prosecutrix was got done from Dr. BSA Hospital vide MLC No. 270/14 and the Doctor has endorsed that 'patient referred from Babu Jagjeevan Ram Hospital for Gynae Examination in case sexual assault'. Statements of the witnesses were recorded. On 29/12/2014, blood sample of the prosecutrix was taken on MLC No. 90158/14. On 10/12/2014, statement of the prosecutrix was got recorded u/s 164 Cr.P.C. On 11/12/2014, accused Danish on the identification of the prosecutrix was arrested. His medical examination was got conducted from BJRM Hospital vide MLC No. 89322/14. His disclosure statement was recorded. On 12/12/2014, the investigation was handed over to SI Seema. Police Custody Remand of the accused was obtained and the pointing out memos of the places of incident were prepared on the pointing out of the accused. The Potency Test of the accused was got conducted from BJRM Hospital vide Potency Test No. 181/14 and on reference by the Doctor some Potency Tests were also got conducted from RML Hospital. On the MLC No. 270/14 of the prosecutrix opinion regarding the nature of the injuries was obtained 4 of 39 5 FIR No. 822/14 PS - Mahendra Park which was opined to be 'simple' Sections 324/366/344 IPC were added in the case. The call details of the mobile phone Nos. 8285367682 and 7532939663 were obtained.
Upon completion of the necessary further investigation, challan for the offences u/s 376/328/324/344/366 IPC was prepared against accused Danish and was sent to the Court for trial.
2. Since the offences u/s 376/328 IPC are exclusively triable by the Court of Session, therefore, after compliance of the provisions of Section 207 Cr.P.C., the case was committed to the Court of Session u/s 209 Cr.P.C.
3. Upon committal of the case to the Court of Session, after hearing on charge prima facie a case u/s 328/366/376(2)(n)/344/323/324 IPC was made out against accused Danish. Charge was framed accordingly which was read over and explained to the accused to which he pleaded not guilty and claimed trial.
5 of 39 6 FIR No. 822/14 PS - Mahendra Park
4. In support of its case prosecution has produced and examined 18 witnesses. PW1 - ASI Dharampal, PW2 - HC Mukesh Kumar, PW3 - Dr. Yogesh Tekwani, CMO, BJRM Hospital, Rohini, Delhi, PW4 - Ct. Satya Prakash, PW5 - Prosecutrix (name withheld), PW6 - Dr. Anu Goel, SR. Obs. & Gynae, BSA Hospital, Rohini, Delhi, PW7 - Dr. Raman Tanwar, SR Deptt. of Urology, Dr. RML Hospital, New DelhiI, PW8 - Sh. Jitender Kumar, Senior Scientific Officer (Chemistry), FSL, Delhi, PW9 - Mohd. Shokeen, PW10 - Ms. Sadhika Jalan, Metropolitan Magistrate, Rohini Courts, Delhi, PW11 - W/ASI Sarla, PW12 - Lady Constable Poonam, PW13 - Sh. Raj Singh, PW - 14 Shri Shishir Malhotra, Nodal Officer, Aircel Limited, PW15 - Feroz Miyan, PW16 - Neena, PW17 - Constable Rajender and PW18 - SI Seema.
5. In brief the witnessography of the prosecution witnesses is as under : PW1 - ASI Dharmpal is the Duty Officer, who deposed that on 09.12.2014, he was posted as Duty Officer in PS Mahendra Park and was on duty from 4 p.m. to 12.00 midnight. On the same day, at 04.15 6 of 39 7 FIR No. 822/14 PS - Mahendra Park pm ASI Sarla handed over a Tehrir to him, on the basis of which he got recorded FIR No. 822/14, U/s 328/342/365/376 IPC through the computer operator on the computer installed in PS. He obtained a print out of the FIR. This print out has been obtained on the basis of information which is used in the routine manner for the purpose of feeding the similar category. The said computer was under his lawful control. Nothing adverse took place during the period as to cause any error regarding the information feeded in the computer. The copy of FIR is Ex. PW 1/A, bearing his signature at PointA. He handed over the copy of FIR to Constable Dev Karan for handing over the same to IO/W/ASI Sarla. He also issued a certificate U/s 65B of The Evidence Act which is Ex. PW 1/B bearing his signature at Point A. He made endorsement on the rukka and the same is Ex. PW 1/C, bearing his signature at point A. PW2 - HC Mukesh Kumar is the MHC(M), who deposed that on 11.12.2014, he was posted as MHC(M) at PS Mahendra Park. On that day, ASI Sarla has deposited one sealed parcel bearing the seal of SP in the Malkhana for which he made entry at serial no. 1201 in register 7 of 39 8 FIR No. 822/14 PS - Mahendra Park no. 19. On the same day ASI Sarla also deposited the articles of personal search of accused Danish. On 29.12.2014 SI Seema deposited one sealed parcel bearing the seal of MS BJRM J puri Delhi along with sample seal in the Malkhana for which he made entry at serial no. 1220 in register no. 19. On 31.12.2014, the sealed parcel and sample seal which were deposited by SI Seema on 29.12.2014 was sent to FSL Rohini by him through Ct. Rajender Singh vide RC No. 128/21/14. He has brought register no. 19 and 21 containing the abovesaid entries. The copy of entry made in register no. 19 are EX.PW2/A and Ex.PW2/B , copy of RC is EX.PW 2/C and copy of acknowledgment receipt is Ex.PW2/D. So long as the case property remained in his custody the same was not tampered with.
PW3 - Dr. Yogesh Tekwani, CMO, BJRM Hospital, who deposed that on 29.12.2014, he was posted as a Casualty Medical Officer in the Casualty of BJRM Hospital. At about 12.50 PM, a patient/prosecutrix (name withheld) W/o Mohd. Anish aged 25 years was brought by police for the deposition of blood sample of (on) gauze piece. He examined the patient and collected the blood sample on the 8 of 39 9 FIR No. 822/14 PS - Mahendra Park gauze piece. He sealed the sample and handed over to IO. For this MLC No. 90158 was made by him the same is Ex.PW3/A and bearing his signature and stamp at point A. PW4 - Constable Satya Prakash, who deposed that on 15.12.2014 he was posted as Constable at PS Mahendra Park. On that day on the instructions of the IO he went to PS Shalimar Bagh and from there accused Danish was taken out from the lockup and took him to the BJRM hospital for his medical examination. His medical examination was got conducted and the sealed exhibits alongwith the sample seal was handed over by the doctor to him. Thereafter, his potency test was also got conducted at the hospital. IO also reached at the hospital and he handed over the MLC and the sealed exhibits of the accused to the IO. Thereafter, he alongwith IO and the accused went to Mother Dairy Near Mohan Medicos Village Shakar Pur where the accused pointed out the place of the incident vide pointing out memo Ex. PW4/A bearing his signature at PointA. Thereafter, they came to the court and the accused was produced in the court and was sent to JC. His statement was recorded by the IO.
9 of 39 10 FIR No. 822/14 PS - Mahendra Park PW5 - Prosecutrix (name withheld) is the victim who deposed some facts regarding the incident and proved her statement made to the police Ex. PW5/A and her statement recorded u/s 164 Cr.P.C. Ex. PW5/B bearing her signature at point 'A'. She deposed that she has brought the original nikahanama and proved the copy of nikahanama as Ex. PW5/C. She resiled from her previous statement and was also crossexamined by the Learned Addl. PP for the State.
PW6 - Dr. Anu Goel, SR. Obs. & Gynae, BSA Hospital, Rohini, Delhi, who deposed that on 10.12.2014 she was working as SR. Obs. & Gynae at BSA Hospital. On that day at about 12.00 AM patient/prosecutrix (name withheld) D/o Mohd. Anish, Age25 Years, Female brought by L/Constable Poonam with alleged history of sexual assault on 25.11.2014. She conducted the gynecological examination of the said patient vide MLC Ex. PW6/A bearing her signature at PointA. PW7 - Dr. Raman Tanwar, SR Deptt. of Urology, Dr. RML Hospital, New Delhi, who deposed that on 12.01.2015 one patient Danish S/o Mohd. Mozi Miya Age 24 Years, Male has been brought to 10 of 39 11 FIR No. 822/14 PS - Mahendra Park the hospital by police with the alleged history of sexual assault. He was medically examined for potency by him and then he gave opinion that there is nothing to suggest that the patient cannot perform sexual intercourse. He prepared detailed MLC which is Ex. PW7/A bearing his signature at PointA. PW8 - Sh. Jitender Kumar, Senior Scientific Officer (Chemistry), FSL, Delhi, who deposed that in the present case one sealed parcel sealed with the seal of MS BJRMS J PURI DELHI was received in FSL on dated 31.12.2014 and same was marked to him for chemical examination. He examined the exhibits and prepared his detailed report Ex.PW8/A bearing his signatures at points A. After examination of the exhibits, the remnants were resealed with the seal of JK FSL DELHI and were handed over to the police.
PW9 - Mohd. Shokeen is the brother of the prosecutrix, who deposed that on 09.12.14 he along with his sister/prosecutrix (name withheld), his mother had gone to PS Mahendra Park. Police had recorded statement of his sister/prosecutrix (name withheld) and her 11 of 39 12 FIR No. 822/14 PS - Mahendra Park medical examination was also got conducted from the hospital and her counseling was also got done from the NGO. Thereafter, they all came back to their house.
PW10 - Ms. Sadhika Jalan, Metropolitan Magistrate, Rohini Court, Delhi, who deposed that on 10.12.2014 she was posted as Metropolitan Magistrate (Traffic), Rohini Courts. On that day, an application was moved by IO for recording statement of prosecutrix (name withheld) D/o Mohd. Anis under section 164 Cr.P.C. and same was marked to her as Ms. Shunali Gupta, Ld. ACMM was on leave. The prosecutrix (name withheld) D/o Mohd. Anis was identified by IO W/ASI Sarla, PS Mahendra Park and thereafter she recorded the statement of the prosecutrix Ex. PW5/A, signed by her at point B and signed by prosecutrix at point A. Her proceedings in this regard is Ex. PW10/A which bears her signatures at point A. IO moved an application for obtaining copy of proceeding under section 164 Cr.P.C and same was allowed vide Ex PW 10/B bearing her signature at point A. Ahlmad was directed to provide the copy of the proceedings to the IO and to send the proceedings in the sealed cover to the concerned court and the same is 12 of 39 13 FIR No. 822/14 PS - Mahendra Park Ex. PW10/C, bearing her signature at point A. PW11 - W/ASI Sarla is the Initial Investigating Officer (IO), of the case who deposed that on 09.12.2014 she was posted at PS Mahendra Park. On that day prosecutrix/complainant (name withheld) along with her brother Shokeen came in the PS. She recorded the statement of prosecutrix (name withheld) which is Ex. PW 5/A and made her endorsement Ex. PW 11/A and same was handed over to duty officer for getting FIR registered. She alongwith Constable Poonam took the prosecutrix to BJRM Hospital but SR (gyane) was not present in the hospital so patient was referred to Dr. BSA Hospital for her medical examination. She got conducted the medical examination of prosecutrix (name withheld). After medical examination she obtained the MLC of the prosecutrix and NGO was called. Thereafter they came back to PS Mahendra Park. Thereafter prosecutrix left the PS along with her brother. On 11.12.2014 she along with Constable Ram Dev reached at Shakur Pur in search of accused Danish and accused Danish present in the Court (correctly identified) was arrested from WZ 48, Mother Dairy, near Mohan Medical Store, near Shakur Pur vide arrest memo Ex. PW 13 of 39 14 FIR No. 822/14 PS - Mahendra Park 11/B bearing her signatures at point A and personal search of accused was conducted vide personal search memo Ex. PW 11/C bearing her signatures at point A. Accused made a disclosure statement which is Ex. PW 11/D bearing her signature at point A. On 13.12.2014 she again joined the investigation along with SI Seema, Constable Krishan and HC Thomas and accused let them to Solan, H.P. and accused pointed out the house no. 346, Om Bhagwan, CV Road, Solan. IO preaped (prepared) the pointing out memo and Firoz Mia also joined the investigation. IO obtained the signature of Firoz Mia on the pointing out memo. Thereafter they came back to PS Mahendra park. Accused was put behind the lock up. Her statement was recorded by the IO.
PW12 - Lady Constable Poonam, who deposed that on 09.12.2014, she was posted at PS Mahindra Park. On that day she was on duty woman help Desk from 08.00 PM to 8.00 AM. On that day, on the instruction of the IO, she took the prosecutrix (name withheld) to BJRM hospital for her medical examination but she was referred to higher center as no SR. doctor was present in the hospital. She along with ASI Sarla took the prosecutrix to Dr. BSA hospital and she got conducted the 14 of 39 15 FIR No. 822/14 PS - Mahendra Park medical examination of the prosecutrix. After medical examination she obtained the MLC of prosecutrix and thereafter they came back to PS and NGO also reached the PS. Her statement was recorded by the IO.
PW13 - Sh. Raj Singh is the owner of H. No. WZ 48, near Mother Dairy, Mohan Medical, Village Shakurpur, Delhi, who deposed that he is the owner of the H. No. WZ 48, near Mother Dairy, Mohan Medical, Village Shakurpur, Delhi. Accused Danish present in the court (correctly identified) came to him and requested to give a room on rent. On his request a room was rented out to him on the rent of Rs. 1500/ per month. Accused Danish with his three associates were living in that room. He remained on rent for about 3 month and thereafter had vacated the room. No rent receipt was issued for the rent paid. His statement was recorded by the IO.
PW14 - Shri Shishir Malhotra, Nodal Officer, Aircel Limited, who deposed that he has brought summoned record i.e. Original Customer Application Forms and the CDR of Mobile No. 8285367682 and 7532939663. As per record the Mobile No.8285367682 15 of 39 16 FIR No. 822/14 PS - Mahendra Park was allotted in the name of Sanjay S/o. Sh. Ashok Kumar R/o H. No. 19 BlockI JJ Colony, Shakurpur, Delhi34. Attested copy of Customer Application Form (CAF) alongwith ID proof as Election Identity Card is Ex. PW14/A (OSR). He has also brought Call Detail Record (CDR) of the abovesaid mobile number from 20.11.2014 to 09.12.2014 (running in twelve pages) which is Ex.PW14/B bearing his initials at PointA (on each page). As per record the Mobile No. 7532939663 was allotted in the name of Sumer Singh S/o Sh. Maninder Singh R/o H. No. 80921, Outram Line GTB Nagar, Delhi9. Attested copy of Customer Application Form (CAF) alongwith ID proof as Election Identity Card is Ex. PW14/C (OSR). He has also brought Call Detail Record (CDR) of the abovesaid mobile number from 20.11.2014 to 09.12.2014 (running in eleven pages) which is Ex.PW14/D bearing his initials at PointA (on each page). The certified copy of Cell ID Chart of both the above said mobile numbers is Ex.PW14/E, which bears his signature at point A. He has also brought the Certificate u/s 65B Evidence Act of both the above said mobile numbers which is Ex. PW14/F bearing his signature at point A. PW15 - Feroz Miyan is the cousin of accused Danish, who 16 of 39 17 FIR No. 822/14 PS - Mahendra Park deposed that accused Danish present in the court is his first cousin. On 25.11.2014, Danish came to him at his house situated at Solan along with one girl and accused told him that he wants to marry to her. He asked Danish to go to native village as there was no arrangement for marriage in Solan and they remained there for two days. Thereafter, accused along with that girl left his house. His statement was recorded by the IO.
PW16 - Neena, who deposed that she is the owner of the house number 346, Om Bhawan, Silli Road, Solan, Himachal Pradesh. Feroz Miyan was her tenant in the year 2014. Feroz Miyan remained in her house for about 34 months. Police officials of PS Mahendra Park came to her and recorded her statement.
PW17 - Constable Rajender, who deposed that on 31.12.2014, he was posted at PS Mahendra Park. On the instructions of IO, MHC(M) handed over the sealed parcels along with sample seal to him for depositing in FSL vide RC but he does not remember its number. He had deposited the same in FSL. After depositing the same, he obtained the receipt on RC and acknowledgment and same were handed 17 of 39 18 FIR No. 822/14 PS - Mahendra Park over to the IO [be read as MHC(M)]. The sealed parcel was not tampered with by anyone during in his possession. His statement was recorded by the IO.
PW18 - SI Seema is the Subsequent Investigating Officer (IO) of the case, who deposed that on 12.12.14, she was posted at PS Mahendra Park. On that day, present case file was assigned to her for further investigation. She had gone through the file and accused Danish was already arrested in this case. She alongwith Constable Dev Karan had taken out the accused Danish, present in the court from the lockup and he was produced before the court and she had obtained three days PC of the accused. They got conducted the medical examination of accused in BJRM Hospital. Thereafter, they reached PS Shalimar Bagh and accused was put inside the lockup and thereafter they came back to PS Mahendra Park. She reached the house of the complainant and recorded the supplementary statement of prosecutrix. On 13.12.2014, she alongwith ASI Sarla, HC Thomas and Constable Krishan went to PS Shalimar Bagh and accused Danish was taken out from the lockup and accused took them to Solan, Himachal Pradesh and accused pointed out 18 of 39 19 FIR No. 822/14 PS - Mahendra Park the place of the incident i.e. H. No. 346, Om Bhawan, Solan, Himachal Pradesh. Firoz Mian cousin of the accused had joined the investigation. She prepared the pointing out memo which is Ex.PW18/A bearing her signature at point A on the pointing of the accused. She recorded the statements of the witnesses. She recorded the statement of Land lady Smt. Neena and Firoz Mian. On 14.12.2014, they came back to PS Mahendra Park. On 15.12.2014, Constable Satya Parkash also joined the investigation and accused took them to village Shakurpur and pointed out the place of incident i.e. H. No. WZ48, Shakurpur Village, 3rd Floor. She prepared the pointing out memo which is Ex. PW4/A bearing her signature at point A. She recorded the statement of owner of H. No. WZ48, Shakurpur namely Raj Singh. Thereafter, accused was produced before the concerned court and he was sent to JC. On 29.12.2014, she had collected the blood sample of prosecutrix and the same was taken into possession vide Ex. PW18/B bearing her signature at point A. Thereafter, she came back to PS Mahendra Park. On 31.12.2014, on her instruction, MHC (M) handed over the exhibits to Constable Rajender for depositing in FSL. Constable Rajender had deposited the same in FSL. After depositing the exhibits, he obtained receipt on RC and 19 of 39 20 FIR No. 822/14 PS - Mahendra Park acknowledgment and same was handed over to the MHC(M). She recorded the statement of MHC(M) and Constable Rajender. On 12.01.2015, she got conducted the potency test of accused Danish in RML Hospital. After completion of investigation, she filed the chargesheet. On 27.05.2015, she had collected the call details record, CAF and location chart of mobile phone of accused and prosecutrix. She also collected the potency test report of accused and same were filed in the court.
The testimonies of the prosecution witnesses shall be dealt with in detail during the course of appreciation of evidence.
6. Statement of accused Danish was recorded u/s 313 Cr.P.C. wherein he pleaded innocence and false implication. Accused Danish did not opt to lead any defence evidence.
7. Learned Counsel for the accused submitted that prosecutrix has not supported the prosecution and the prosecution has failed to prove its case beyond reasonable doubts and prayed for the acquittal of the 20 of 39 21 FIR No. 822/14 PS - Mahendra Park 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 State and Sh. Qamar Hussain, Learned Counsel for the accused and have also carefully perused the entire record.
10. The charge for the offences punishable under sections 328/366/376(2)(n)/344/323/324 IPC against the accused Danish is that on 25.11.2014 at about 4.15 PM at Gate No.3, Sanjay Enclave, Jahangirpuri, Delhi, within the jurisdiction of PS Mahendra Park, accused Danish administered some stupefying/ intoxicant substance after mixing it in water to the Prosecutrix (name withheld) D/o Mohd. Anees, 21 of 39 22 FIR No. 822/14 PS - Mahendra Park Aged 25 Years, with intent to cause hurt to her or with intent to commit or to facilitate the commission of an offence and that accused Danish abducted complainant/prosecutrix (name withheld) from Sanjay Enclave, Jahangirpuri, Delhi, with the intent that she may be forced or seduced to illicit intercourse and accused Danish took her to House No. WZ48A, Mother Dairy, Near Mohan Medical Store, Shakur Pur Village, Delhi and that during the period from 25.11.2014 to 04.12.2014 at H. No. WZ48A, Mother Dairy, Near Mohan Medical Store, Shakur Pur Village, Delhi, accused Danish forcibly committed rape upon the Prosecutrix (name withheld) against her will and without her consent several times and that during the abovesaid period and (at) abovesaid place accused Danish wrongfully confined prosecutrix (name withheld) and that during the abovesaid period and (at) abovesaid place accused Danish voluntarily caused hurt (sharp) on the body of Prosecutrix (name withheld) with blade and also caused simple hurt to her by giving slaps.
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 22 of 39 23 FIR No. 822/14 PS - Mahendra Park some places their part of depositions have been reproduced, in the interest of justice.
AGE OF THE PROSECUTRIX
12. PW5 - Prosecutrix in her statement recorded in the Court on 17.08.2015 while giving her particulars has stated her age as 21 years.
Since PW5 - prosecutrix has stated her age as 21 years on 17/08/2015 at the time of recording her evidence/statement in the Court and the date of the alleged incident is 25.11.2014, on simple arithmetical calculation, the age of the prosecutrix comes to 20 years, 03 month and 08 days as on the date of the alleged incident on 25.11.2014.
Moreover, the said factum of age of PW5 - prosecutrix has also not been disputed by accused Danish. 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 PW5 - prosecutrix was aged 20 years, 03 month and 08 days as on the date of the alleged incident on 25.11.2014.
23 of 39 24 FIR No. 822/14 PS - Mahendra Park MEDICAL EVIDENCE OF THE PROSECUTRIX
13. PW3 - Dr. Yogesh Tekwani, CMO, BJRM Hospital has deposed that on 29.12.2014, he was posted as a Casualty Medical Officer in the Casualty of BJRM Hospital. At about 12.50 PM, a patient/prosecutrix (name withheld) W/o Mohd. Anish aged 25 years was brought by police for the deposition of blood sample of (on) gauze piece. He examined the patient and collected the blood sample on the gauze piece. He sealed the sample and handed over to IO. For this MLC No. 90158 was made by him the same is Ex.PW3/A and bearing his signature and stamp at point A. PW6 - Dr. Anu Goel, SR. Obs. & Gynae, BSA Hospital, Rohini, Delhi has deposed that on 10.12.2014 she was working as SR. Obs. & Gynae at BSA Hospital. On that day at about 12.00 AM patient/prosecutrix (name withheld) D/o Mohd. Anish, Age25 Years, Female brought by L/Constable Poonam with alleged history of sexual assault on 25.11.2014. She conducted the gynecological examination of the said patient vide MLC Ex. PW6/A bearing her signature at PointA. Despite grant of opportunity, PW3 - Dr. Yogesh Tekwani 24 of 39 25 FIR No. 822/14 PS - Mahendra Park and PW6 - Dr. Anu Goel were not crossexamined on behalf of the accused.
In view of above and in the circumstances, the medical and gynecological examination vide MLCs Ex. PW3/A & Ex. PW6/A of PW5 - prosecutrix stands proved on the record. VIRILITY OF THE ACCUSED DANISH
14. PW7 - Dr. Raman Tanwar, SR Deptt. of Urology, Dr. RML Hospital, New Delhi has deposed that on 12.01.2015 one patient Danish S/o Mohd. Mozi Miya Age 24 Years, Male has been brought to the hospital by police with the alleged history of sexual assault. He was medically examined for potency by him and then he gave opinion that there is nothing to suggest that the patient cannot perform sexual intercourse. He prepared detailed MLC which is Ex. PW7/A bearing his signature at PointA. Despite grant of opportunity, PW7 - Dr. Raman Tanwar 25 of 39 26 FIR No. 822/14 PS - Mahendra Park was not crossexamined on behalf of the accused.
In view of above and in the circumstances, it stands proved on the record that accused Danish was capable of performing sexual intercourse.
FORENSIC EVIDENCE (CHEMICAL)
15. PW8 - Sh. Jitender Kumar, Senior Scientific Officer (Chemistry), FSL, Delhi has deposed that in the present case one sealed parcel sealed with the seal of MS BJRMS J PURI DELHI was received in FSL on dated 31.12.2014 and same was marked to him for chemical examination. He examined the exhibits and prepared his detailed report Ex.PW8/A bearing his signatures at points A. After examination of the exhibits, the remnants were resealed with the seal of JK FSL DELHI and were handed over to the police.
As per Chemical Examination Report Ex. PW8/A the description of articles contained in parcel and results of examination report reads as under : 26 of 39 27 FIR No. 822/14 PS - Mahendra Park DETAILS OF THE PARCELS/EXHIBITS RECEIVED No. of No. of Seals & Description of Parcels/Exhibits Parcels / Seal Impression Exhibits Parcel1 One seal of One sealed cloth parcel. It was found to "M.S.B.J.R.M.S.J contain exhibit '1'.
.PURI DELHI"
Exhibit'1' Light blackish brown coloured cotton bandage piece stated to be blood sample of victim Ruby, MLC No. 90158, E.No. 238492, kept in a jar.
9. Purpose of reference : For Chemical Examination & Report.
10. Dates of Examination : 08/04/15 to 15/06/15.
11. RESULTS OF EXAMINATION REPORT On chemical TLC & GCMS examination, metallic poisons, ethyl and methyl alcohol cyanide, phosphide, alkaloids, barbiturates, tranquilizers and pesticides could not be detected in exhibit '1'.
12. After the examination, the remnants of the exhibits have been sealed with the seal of JK FSL DELHI as per specimen provided below.
27 of 39 28 FIR No. 822/14 PS - Mahendra Park Specimen Seal Examined by:
Name : JITENDRA KUMAR
Designation :
Note: 1. Results related only to exhibits tested.
2. Report shall not be reproduced except in full, without the written approval of the Director.
3. Reference to Procedure (s) used: FSL/DELHI/TOXI/05. As per the chemical examination report Ex. PW8/A, with regard to the description of the articles contained in the parcel, it is noticed that Parcel no. 1 belongs to the prosecutrix which was seized vide seizure memo Ex. PW18/B dated 29.12.2014.
On careful perusal and analysis of the Chemical Examination Report Ex. PW8/A, it is clear that on chemical TLC & GC MS examination, metallic poisons, ethyl and methyl alcohol cyanide, phosphide, alkaloids, barbiturates, tranquilizers and pesticides could not be detected in exhibit '1'.
16. Now let the testimony of PW5 Prosecutrix be perused and 28 of 39 29 FIR No. 822/14 PS - Mahendra Park analysed.
PW5 Prosecutrix, in her examinationinchief has deposed which is reproduced and reads as under : "I was living in Delhi since my childhood at Flat No. 228, Sanjay Enclave, Jahangirpuri, Delhi. My bhabhi lives in Shalimar Bagh, Delhi and she had taken me in the house of her relatives (ristedari mae) in March, 2014 at Rampur, (U.P), my bhabhi had got me introduced there with Danish. Thereafter, my talking on phone started. On 25.11.2014 I and Danish had gone for touring at Solan,H.P. and there we performed the marriage (waha hamne nikah kar liya). We stayed there for few days and on 04/12/2014 I came back to my house in Delhi. I can identify Danish, if shown to me.
At this stage, the wooden partition has been removed. Accused Danish is present in the court (correctly identified).
The wooden partition now has been restored to its original position.
I had told my family members regarding my marriage with Danish, on hearing this my brother gave me beatings and I was tortured by my family members. My signatures were obtained on blank papers by my family members. Thereafter, the police had come to my house and asked me to sign on a paper and I was pressurized to sign the same and signatures of my family members were also obtained. I was also called by the police at police station and thereafter I was made to sign on the papers without reading the contents of the same. I was also brought by 29 of 39 30 FIR No. 822/14 PS - Mahendra Park the police to the court and I was threatened by the police and my family members to make the statement as has been tutored by them and due to the fear of the police and my family members I made the statement as per their tutoring. Thereafter, I had gone to my inlaws house (uske baad mae apne sasural chali gae). My medical examination was also got conducted by the police."
From the aforesaid narration of PW12 - prosecutrix, it is clear that she was living in Delhi since her childhood at Flat No. 228, Sanjay Enclave, Jahangirpuri, Delhi. Her bhabhi lives in Shalimar Bagh, Delhi and she had taken her in the house of her relatives (ristedari mae) in March, 2014 at Rampur, (U.P), her bhabhi had got her introduced there with Danish. Thereafter, her talking on phone started. On 25.11.2014 she and Danish had gone for touring at Solan,H.P. and there they performed the marriage (waha hamne nikah kar liya). They stayed there for few days and on 04/12/2014 she came back to her house in Delhi. She correctly identified accused Danish present in the Court. She had told her family members regarding her marriage with Danish, on hearing this her brother gave her beatings and she was tortured by her family members. Her signatures were obtained on blank papers by her family members. Thereafter, the police had come to her house and asked her to 30 of 39 31 FIR No. 822/14 PS - Mahendra Park sign on a paper and she was pressurized to sign the same and signatures of her family members were also obtained. She was also called by the police at police station and thereafter she was made to sign on the papers without reading the contents of the same. She was also brought by the police to the court and she was threatened by the police and her family members to make the statement as has been tutored by them and due to the fear of the police and her family members she made the statement as per their tutoring. Thereafter, she had gone to her inlaws house (uske baad mae apne sasural chali gae). Her medical examination was also got conducted by the police.
PW5 - 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 the statement dated 05.12.2014 is bearing my signature at PointA. Vol. the statement was not read out to me by the police before I signed the same. The statement dated 05.12.2014 is Ex. PW5/A. The statement dated 05.12.2014 is Ex. PW5/A read over to the witness, who denies of having made such statement to the police.
I have studied upto 12th Class. I put my signature on any 31 of 39 32 FIR No. 822/14 PS - Mahendra Park paper after going through the same. Vol. the statement Ex. PW5/A was not read out to me by the police before I signed the same.
I had not lodged any complaint in writing against the arrest of my husband. Vol. I had told my family members but I was not allowed to go out of the house and to take any step or to make any complaint.
I had not stated to the police that on 25.11.2014 I met Danish at about 4.15 PM at Gate No. 3, Sanjay Enclave, where he offered water to me and on drinking the same I lost my consciousness. (Confronted with the statement Ex. PW5/A, where it is so report). It is wrong to suggest that I had stated to the police that on 25.11.2014 I met Danish at about 4.15 PM at Gate No. 3, Sanjay Enclave, where he offered water to me and on drinking the same I lost my consciousness.
I had not stated to the police that about 7.30 PM my eyes opened and I found myself in a room in a naked condition and there was pain in my private part. I asked Danish as to where I have been brought by him and what all this he had done with me and he committed three/four times 'rape' upon me and he also inflicted blade injuries upon both my hands and also gave beatings to me. (Confronted with the statement Ex. PW5/A, where it is so report). It is wrong to suggest that I had stated to the police that about 7.30 PM my eyes opened and I found myself in a room in a naked condition and there was pain in my private part. I asked Danish as to where I have been brought by him and what all this he had done with me and he committed three/four times 'rape' upon me and he also inflicted blade injuries upon both my hands and also gave beatings to me.
At this stage, a sealed envelope sealed with the seal of 'SJ' lying on the Judicial Record is opened, from which the proceedings u/s 164 Cr.P.C. are taken out. The statement u/s 164 Cr.P.C. is shown to the witness. It is correct that the statement u/s 164 Cr.P.C. bearing my 32 of 39 33 FIR No. 822/14 PS - Mahendra Park signature at point 'A'. Vol. I made the statement under the pressure of the police and my family members. The statement u/s 164 Cr.P.C is Ex. PW5/B. It is wrong to suggest that the statement u/s 164 Cr.P.C is my voluntarily statement or that the statement u/s 164 Cr.P.C was not made by me under the pressure and tutoring of the police or my family members.
I have brought the original nikahanama. The copy of which is Ex. PW5/C. It is wrong to suggest that I am concealing the true and actual fact in order to save accused Danish as he is now my husband. It is wrong to suggest that I have been won over by the accused. It is wrong to suggest that I am deposing falsely."
PW5 - Prosecutrix was not crossexamined on behalf of accused despite grant of opportunity.
On analysing the entire testimony of PW5 - prosecutrix it is clearly indicated that during her examinationinchief she has specifically deposed that "on 25.11.2014 I and Danish had gone for touring at Solan,H.P. and there we performed the marriage (waha hamne nikah kar liya). We stayed there for few days and on 04/12/2014 I came back to my house in Delhi," "on 25.11.2014 I and 33 of 39 34 FIR No. 822/14 PS - Mahendra Park Danish had gone for touring at Solan,H.P. and there we performed the marriage (waha hamne nikah kar liya). We stayed there for few days and on 04/12/2014 I came back to my house in Delhi." During her crossexamination by Learned Addl. PP for the State she negated the suggestions that she had stated to the police that on 25.11.2014 she met Danish at about 4.15 PM at Gate No. 3, Sanjay Enclave, where he offered water to her and on drinking the same she lost her consciousness or that about 7.30 PM her eyes opened and she found herself in a room in a naked condition and there was pain in her private part. She asked Danish as to where she has been brought by him and what all this he had done with her and he committed three/four times 'rape' upon her and he also inflicted blade injuries upon both her hands and also gave beatings to her or that the statement u/s 164 Cr.P.C is her voluntarily statement or that the statement u/s 164 Cr.P.C was not made by her under the pressure and tutoring of the police or her family members or that she is concealing the true and actual fact in order to save accused Danish as he is now her husband or that she has been won over by the accused or that she is deposing falsely.
34 of 39 35 FIR No. 822/14 PS - Mahendra Park As discussed hereinbefore, PW5 - prosecutrix has been found to be aged around 21 years, from the testimony of PW5 - prosecutrix, nothing is being indicated that 25.11.2014 at about 4.15 PM at Gate No.3, Sanjay Enclave, Jahangirpuri, Delhi, accused Danish administered some stupefying/ intoxicant substance after mixing it in water to PW5 - Prosecutrix with intent to cause hurt to her or with intent to commit or to facilitate the commission of an offence or that accused Danish abducted the prosecutrix from Sanjay Enclave, Jahangirpuri, Delhi, with the intent that she may be forced or seduced to illicit intercourse and accused Danish took her to House No. WZ48A, Mother Dairy, Near Mohan Medical Store, Shakur Pur Village, Delhi or that during the period from 25.11.2014 to 04.12.2014 at H. No. WZ48A, Mother Dairy, Near Mohan Medical Store, Shakur Pur Village, Delhi, accused Danish forcibly committed rape upon the Prosecutrix against her will and without her consent several times or that during the abovesaid period and at abovesaid place accused Danish wrongfully confined the prosecutrix or that during the abovesaid period and at abovesaid place accused Danish voluntarily caused hurt (sharp) on the body of the Prosecutrix with blade and also caused simple hurt to her by giving 35 of 39 36 FIR No. 822/14 PS - Mahendra Park slaps. Even the FSL chemical examination report Ex. PW8/A as reproduced, discussed and analysed hereinbefore also does not come to the rescue of the prosecution case.
Now, let the testimony of PW9 - Mohd. Shokeen, brother of the prosecutrix be perused and analysed.
PW9 - Mohd. Shokeen in his examinationinchief has deposed that on 09.12.14 he along with his sister/prosecutrix (name withheld), his mother had gone to PS Mahendra Park. Police had recorded statement of his sister/prosecutrix (name withheld) and her medical examination was also got conducted from the hospital and her counseling was also got done from the NGO. Thereafter, they all came back to their house.
PW9 - Mohd. Shokeen was not crossexamined on behalf of accused despite grant of opportunity.
On careful perusal and analysis of the testimony of PW9 -
36 of 39 37 FIR No. 822/14 PS - Mahendra Park Mohd. Shokeen, brother of the prosecutrix, it is found that nothing material has come out in his testimony so as to advance the case of the prosecution on the core spectrum of the crime.
17. In view of above and in the circumstances, I find that the prosecution has failed to prove its case beyond reasonable doubt against accused Danish. The hostility of PW5 - prosecutrix has knocked out the bottom of the case of the prosecution. There is nothing on record to indicate that on 25.11.2014 at about 4.15 PM at Gate No.3, Sanjay Enclave, Jahangirpuri, Delhi, accused Danish administered some stupefying/ intoxicant substance after mixing it in water to PW5 - Prosecutrix aged around 21 years, with intent to cause hurt to her or with intent to commit or to facilitate the commission of an offence or that accused Danish abducted the prosecutrix from Sanjay Enclave, Jahangirpuri, Delhi, with the intent that she may be forced or seduced to illicit intercourse and accused Danish took her to House No. WZ48A, Mother Dairy, Near Mohan Medical Store, Shakur Pur Village, Delhi or that during the period from 25.11.2014 to 04.12.2014 at H. No. WZ48A, Mother Dairy, Near Mohan Medical Store, Shakur Pur Village, Delhi, 37 of 39 38 FIR No. 822/14 PS - Mahendra Park accused Danish forcibly committed rape upon the Prosecutrix against her will and without her consent several times or that during the abovesaid period and at abovesaid place accused Danish wrongfully confined the prosecutrix or that during the abovesaid period and at abovesaid place accused Danish voluntarily caused hurt (sharp) on the body of the Prosecutrix with blade and also caused simple hurt to her by giving slaps.
I accordingly, acquit accused Danish for the offences punishable u/s 328/366/376(2)(n)/344/323/324 IPC.
18. In view of above discussion, I am of the considered opinion that as far as the involvement of accused Danish in the commission of offences punishable u/s 328/366/376(2)(n)/344/323/324 IPC, is concerned, the same is not sufficiently established by the cogent and reliable evidence and in the ultimate analysis, the prosecution has failed to bring the guilt home to the accused Danish. beyond shadows of all reasonable doubts and there is a room for hypothesis, consistent with that of innocence of accused Danish. I, therefore, acquit accused Danish for the offences punishable u/s 328/366/376(2)(n)/344/323/324 IPC, after 38 of 39 39 FIR No. 822/14 PS - Mahendra Park giving him the benefit of doubt. Accused Danish is on bail. However, u/s 437A Cr.P.C accused Danish shall furnish a personal bond in the sum of Rs. 20,000/ with a surety in the like amount and the accused and the surety shall also require to annex their latest passport size photographs alongwith their latest residential proof (vide State Vs. Virender Yadav & Anr. 2014 1 AD (DELHI) 389) which shall remain in force for six months and he to appear before the Hon'ble Higher Court as and when such Court issues Notice in respect of any Petition filed against this judgment.
Announced in the open Court (MAHESH CHANDER GUPTA) on 19th Day of December, 2015 Additional Sessions Judge Special Fast Track Court (North District), Rohini, Delhi 39 of 39