Delhi District Court
State vs . Raj Kumar on 5 November, 2015
1
FIR No. 47/13
PS - Swaroop Nagar
IN THE COURT OF SH. MAHESH CHANDER GUPTA :
ADDITIONAL SESSIONS JUDGE : SPECIAL FAST TRACK
COURT : NORTH DISTRICT : ROHINI : DELHI
SESSIONS CASE NO. : 262/13
Unique ID No. : 02404R0219032013
State Vs. Raj Kumar
S/o Shri Daya Shankar
R/o H. No. 105, Gali No. 12,
B - Block, Kaushik Enclave,
Burari, Delhi110084.
FIR No. : 47/13
Police Station : Swaroop Nagar
Under Sections : 376/506 IPC
Date of committal to session Court : 08/08/2013
Date on which judgment reserved : 13/10/2015
Date on which judgment announced : 05/11/2015
J U D G M E N T
1. Briefly stated the case of the prosecution as unfolded by the 1 of 45 2 FIR No. 47/13 PS - Swaroop Nagar report under section 173 Cr.P.C. is as under : That on 15/02/2013 complainant/prosecutrix (name withheld being a case u/s 376 IPC) D/o K. K. Jha R/o House No. 5, Gali No. 34, BBlock, Kaushik Enclave, Burari, Delhi, came to Police Station Burari and got recorded her statement to WSI Neeraj which is to the effect that, she lives with her family at the above address and they are five brothers and sisters and she is at number three. The name of her youngest brother is Utkarsh, who was having throat problem and for his homeopathic treatment, her mother had taken her brother near Nirankari Bus Stand (inside Gauri Shanker Mandir), Delhi and from there he was getting his treatment and the said clinic is of Dr. Raj Kumar. Thereafter some day, when her (prosecutrix) condition has also become bad, her mother had also taken her for treatment at the said clinic and she (prosecutrix) was also getting treatment from the said clinic. Firstly, he (Dr. Raj Kumar) made inquiries from her (prosecutrix) and then he placed a proposal for marriage with her (prosecutrix) in front of her mother and he had concealed the fact that he was already married. Firstly, she (prosecutrix) was not ready, as he appeared to be of more age (Uski Umar Jyada Lagti Thi) and she also did not like him (Mujhe Pasand Bhi Nahi Tha). Then, 2 of 45 3 FIR No. 47/13 PS - Swaroop Nagar one day in June 2011, Raj Kumar came to her (prosecutrix) house to give medicine to her and he forcibly committed rape upon her (prosecutrix) at her house and she could not save herself as at that time, she was too much sick (Bahut Beemar Thi) and she could not secure herself (Mein Apna Bachav Nahi Kar Payi) and her mother had gone to village and her younger brothers and sisters had gone to school and her elder sister who is a teacher in Delhi Public School and her posting at that time was at Bhagalpur, Bihar. Due to the fear of society, she could not disclose about the incident to anyone. Later on, after coming of her mother from the village, she had told all about the incident to her and due to this incident, she (prosecutrix) had gone in depression, for which she is under treatment from Hindu Rao Hospital. Thereafter, the message of Raj Kumar started pouring in (Message Aane Lage) and she told him not to send the messages. Thereafter, in February, 2012 phone of wife of Raj Kumar came on her (prosecutrix) phone and she (wife of Raj Kumar) told that Raj Kumar is married and is also having two children and she (wife of Raj Kumar) also told that she had taken this phone number (phone number of prosecutrix) from the phone of her husband Raj Kumar. Then she (prosecutrix) came to know that Raj 3 of 45 4 FIR No. 47/13 PS - Swaroop Nagar Kumar is married and is also having two children, on which she (prosecutrix) stopped talking to him and thereafter, Raj Kumar once or twice (Ek Aadh Baar) had also come to her house by taking a poison bottle and used to threat to drink the poison, "if she (prosecutrix) did not marry with him, then he will drink the poison", and used to say that he will tell the principal of her school that they were having physical relations (Agar Mujhse Shadi Nahi Ki, To Main Zahar Pee Lunga Aur Kehta Tha Ki Tumhare School Ke Principal Ko Bata Dunga Ki Hamare Sharirik Sambandh Rahe Hain). On 12/02/2013 at about 5:00 p.m., in the evening, Raj Kumar called her mother and threatened her (mother of the prosecutrix) to kill and with the assistance of one more boy, he (Raj Kumar) got signed 1520 pages from her (mother of the prosecutrix) and also got obtained her (mother of the prosecutrix) thumb impression and did not allow the papers to read and also got written three letters from her mother and all this, he (Raj Kumar) got done on the point of knife (Ek Aur Ladke Ke Sath Milkar, 1520 Kagzon Par Sign Karvaye, Tatha Angutha Lagwa Liya Tha, Tatha Kagaz Padhne Nahi Diye, Tatha Meri Mummy Se Teen Patra Likhvaye, Tatha Usne Yeh Sab Chaku Ki Nok Par Karvaya Hai). Raj Kumar has forcibly committed rape upon her at her 4 of 45 5 FIR No. 47/13 PS - Swaroop Nagar house at Kaushik Enclave. Legal action be taken against Raj Kumar. She has heard and understood her statement and is correct. On the basis of the statement, from the circumstances finding that offences u/s 376/506 IPC appeared to have been committed, W/SI Neeraj after making endorsement on the statement of the prosecutrix got registered zero FIR/13 at PS Burari and took the asal tehrir, computer copy of FIR and the prosecutrix with her and reached at PS Swaroop Nagar as the place of incident was situated within the jurisdiction of PS Swaroop Nagar. SHO PS Swaroop Nagar after making the endorsement, got registered a case u/s 376/506 IPC and the investigation of the case was handed over to SI Shashi Lata, who during the course of investigation, prepared the site plan, recorded the statements of the witnesses, got recorded the statement of prosecutrix u/s 164 Cr.P.C. and thereafter on 06.05.2013 the further investigation was handed over to W/SI Kamal Duggal who during the course of investigation arrested accused Raj Kumar, recorded his disclosure statement, prepared pointing out memo of the place of incident at the instance of the accused and got conducted his medical examination from BJRM Hospital.
Upon completion of the necessary further investigation 5 of 45 6 FIR No. 47/13 PS - Swaroop Nagar challan for the offences u/s 376/506 IPC was prepared against accused Raj Kumar and was sent to the Court for trial.
2. Since the offence under section 376 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 under section 209 Cr.P.C.
3. Upon committal of the case to the Court of session and after hearing on charge, prima facie a case under sections 376/506 IPC was made out against accused Raj Kumar. The 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 13 witnesses. PW1 - Dr. Mohit Tiwari, CMO, BJRM Hospital, Jahangir Puri, Delhi, PW2 - Dr. Shubham Shukla, JR, BJRM Hospital, Jahangir Puri, Delhi, PW3 - HC Bhagwan Singh, PW4 - ASI Bhim Singh, PW5 - Constable Nathu, PW6 - Dr. Chhitiz Mohan, Senior 6 of 45 7 FIR No. 47/13 PS - Swaroop Nagar Resident (Surgery), BJRM Hospital, Delhi, PW7 - Dr. Seema, Medical Officer, BJRM Hospital, Jahangir Puri, Delhi, PW8 - Dr. Vaibhav Gulati, CMO, BJRM Hospital, Delhi, PW9 - Prosecutrix (name withheld), PW10 - W/SI Neeraj, PW11 - Smt. Manju Jha, PW12 Inspector Kamal Duggal and PW13 SI Shashi Lata.
5. In brief the witnessography of the prosecution witnesses is as under : PW1 - Dr. Mohit Tiwari, CMO, BJRM Hospital, Jahangir Puri, Delhi, who deposed that on 07/05/2013, one patient Raj Kumar S/o Daya Shankar, Age 39 years, male was brought to Hospital for medical examination. The patient was examined by Dr. Divya Kansal, J.R. under his supervision. On local examination no external injury seen. The MLC is Ex. PW1/A, bearing signature of Dr. Divya Kansal at point 'A' and his signature at point 'B'.
PW2 - Dr. Shubham Shukla, JR, BJRM Hospital, Jahangir Puri, Delhi, who deposed that on 15/02/2013, one patient/prosecutrix (name withheld) D/o K. K. Jha, Age 28 years female was brought to 7 of 45 8 FIR No. 47/13 PS - Swaroop Nagar Hospital for medical examination with the alleged H/O rape. On local examination, no fresh external injury seen and thereafter she was referred to S.R. (Gynae) for further examination. She prepared the MLC and the same is Ex. PW2/A, bearing her signature at point 'A'.
PW3 - HC Bhagwan Singh is the Duty Officer, who deposed that on 15/02/2013, he was posted as Duty Officer at PS - Swaroop Nagar and was on duty from 8:00 a.m. to 8:00 p.m. On that day, SHO/ACP (under training) Sh. Sanjay Sehrawat has handed over to him the copy of zero FIR of PS - Burari after making his endorsement for registration of the FIR, on the basis of which and on his instruction present FIR No. 47/13 u/s 376/506 IPC was registered. After registration of FIR, he handed over the copy of the FIR and the copy of Zero FIR to W/SI Shashi Lata for further investigation. He has brought the original FIR register. The copy of the FIR is Ex. PW3/A bearing his signature at point 'A' (OSR). He made endorsement on the Zero FIR, same is Ex. PW3/B. PW4 - ASI Bhim Singh is the Duty Officer, who deposed 8 of 45 9 FIR No. 47/13 PS - Swaroop Nagar that on the intervening night of 1516/02/2013, he was posted at PS - Burari. He was working as Duty officer from 12:00 Night to 8:00 a.m. At about 2:20 a.m. W/SI Neeraj has produced a rukka before him and he got registered from the computer operator zero FIR u/s 376/506 IPC correctly. After registration of the zero FIR, he had handed over the copy of another computerized FIR and the original tehrir to W/SI Neeraj for further investigation. He made endorsement on the tehrir regarding registration of FIR vide DD No. 5A. Endorsement is Ex. PW4/A bears his signature at Point 'A'.
PW5 - Constable Nathu, who deposed that on 06/05/2013, he was posted at PS Swaroop Nagar. On that day, he joined the investigation with W/SI Kamal Duggal and went to Court Room No. 103, Rohini Court as one accused Raj Kumar wanted in this case was to surrender in the Court. Accused Raj Kumar surrendered in the Court at about 2:00 p.m. IO moved an application in the Court for taking permission of interrogation of the accused Raj Kumar and after taking permission from the concerned court accused Raj Kumar was interrogated. After interrogation accused was formally arrested vide 9 of 45 10 FIR No. 47/13 PS - Swaroop Nagar arrest memo Ex. PW5/A bearing his signature at Point 'A'. His personal search was also conducted vide memo Ex. PW5/B bearing his signature at Point 'A'. His disclosure statement was also recorded. Same is Ex. PW5/C bearing his signature at Point 'A'. One day PC remand was also given by the concerned Court on the request of the IO. IO got prepared the dozier (dossier) of the accused from Ashok Vihar, DCP Office. Accused took the Police persons to the H. No. 5, B Block, Gali No. 34, Kaushik Enclave, Burari where the incident has took place. The pointing out memo Ex. PW5/D was prepared by the IO bearing his signature at Point 'A'. Thereafter, accused was got medically examined from BJRM Hospital, Jahangir Puri and thereafter, they returned to PS - Jahangir Puri alongwith the accused. Accused was sent to lockup. His statement was also recorded by the IO u/s 161 Cr.P.C. Accused Raj Kumar is present in the Court (correctly identified).
PW6 - Dr. Chhitiz Mohan, Senior Resident (Surgery), BJRM Hospital, Delhi, who deposed that on 06/05/2013, at about 5:25 p.m. one patient Raj Kumar S/o Daya Shankar was brought to the 10 of 45 11 FIR No. 47/13 PS - Swaroop Nagar Hospital by Constable Nathu for potency test. After examination he was referred to SR (Surgery) for potency test and he has examined the patient. After examination he was of the opinion that there was nothing to suggest that Raj Kumar is incapable to perform sexual intercourse. His examination is at Point 'A to A1' on MLC Ex. PW6/A bears his signature at Point 'B'.
PW7 - Dr. Seema, Medical Officer, BJRM Hospital, Jahangir Puri, Delhi, who deposed that she has been deputed by the MS of the Hospital to depose on behalf of Dr. Shalini, SR. Gynae and Dr. Kamakshi Narula, Medical Officer who have since left the services of Hospital and their present whereabouts are not known. She is acquainted with the handwriting and signatures of Dr. Shalini and Dr. Kamakshi Narula as she has seen them signing and writing during the official course of the duties. As per the MLC No. 54600, on 15/02/2013, patient/prosecutrix (name withheld) D/o K. K. Jha, Age about 25 Years, Female was produced in the Hospital by W/Constable Renu whose gynecological examination was conducted by Dr. Shalini and the said examination is from Portion 'X to X' on the MLC already Ex. PW2/A, 11 of 45 12 FIR No. 47/13 PS - Swaroop Nagar bearing the signature of Dr. Shalini at point 'B'. As per the MLC No. 59018, on 06/05/2013, patient Raj Kumar S/o Daya Shanker, Age 39 Years, Male was produced in the Hospital by Constable Nathu and his preliminary medical examination was conducted by Dr. Kamakshi Narula vide MLC already Ex. PW6/A bearing the signature of Dr. Kamakshi Narula at Point 'C' and thereafter, he was referred to the SR (Surgery).
PW8 - Dr. Vaibhav Gulati, CMO, BJRM Hospital, Delhi, who deposed that he has been deputed by the MS of the Hospital to depose on behalf of Dr. Rahul Singh who has since left the services of Hospital and his present whereabouts are not known. He is acquainted with the handwriting and signatures of Dr. Rahul Singh as he has seen him signing and writing during the official course of the duties. As per the MLC No. 54600, on 15/02/2013, patient/prosecutrix (name withheld) D/o K. K. Jha, Age 25 Years, Female was produced in the Hospital by W/Constable Renu whose examination was conducted by Dr. Shubham Shukla, JR under the supervision of Dr. Rahul Singh and was referred to SR Gynae for further examination and management. The said MLC is 12 of 45 13 FIR No. 47/13 PS - Swaroop Nagar already Ex. PW2/A bearing the signature of Dr. Rahul Singh at Point 'C'.
PW9 - Prosecutrix is the victim who deposed some facts regarding the incident and proved her statement recorded u/s 164 Cr.P.C. Ex. PW9/A. She resiled from her previous statement and was also cross examined by the Learned Addl. PP for the State.
PW10 - W/SI Neeraj who deposed that on 14/02/2013, she was posted as SI at PS Burari. On that day, at about 10:00 p.m. complainant/prosecutrix (name withheld) alongwith her mother came to PS Burari and informed regarding committal of rape upon her by Dr. Raj Kumar, Practicing in Homeopathic medicine in Nirankari Colony. She made inquiry from complainant/prosecutrix (name withheld) who gave a detailed statement which was recorded by her. She made endorsement Ex. PW10/A on the statement of prosecutrix (name withheld) and handed over the Tehrir to Duty Officer, PS Burari at about 2:20 a.m. of 15/02/2013 for the registration of Zero FIR as the jurisdiction of the offence falls in the area of PS Swaroop Nagar. Then she alongwith prosecutrix (name withheld) and her mother went to PS 13 of 45 14 FIR No. 47/13 PS - Swaroop Nagar Swaroop Nagar. She produced the prosecutrix (name withheld) and her mother before SHO PS Swaroop Nagar and she also handed over the copy of Zero FIR registered with PS Burari alongwith original Rukka to the SHO PS Swaroop Nagar. Her statement was recorded by IO SI Kamal Duggal.
PW11 - Smt. Manju Jha is the mother of the prosecutrix, who deposed that she has five children out of which four are daughters and one is son. Prosecutrix (name withheld) is her third child. In the year, 2011 her son Utkarsh was suffering from some disease so she took him to the clinic of Dr. Raj Kumar in Nirankari Colony. She identifies accused Raj Kumar present in the Court (correctly identified). She alongwith her son Utkarsh visited several times in the clinic of Dr. Raj Kumar for his treatment. During those visits she stated to accused that she didn't have ration card. He asked her to give the documents of her house situated at abovesaid address i.e Kaushik Enclave, Burari so that he would help her in applying the ration card. She handed over the photocopies of the documents of her house. After 3/4 months accused Dr. Raj Kumar shifted his clinic from Nirankari Colony to Sant Nagar.
14 of 45 15 FIR No. 47/13 PS - Swaroop Nagar When she asked accused about her ration card then he asked her to wait for some more time and he is trying to get issue the same from the concerned office. She waited for several months but accused could not get issued the ration card so she visited his clinic at Sant Nagar and asked him to return the photocopies of the documents of her house. He again asked to wait for some more time to her but she was not agree to the same and she again asked him to return her documents. On this issue some arguments exchanged between her and accused (Kuch Chhadap Hoo Gae). She returned to her house. It was evening time and she was feeling upset. She decided to approach the Police. She went to PS Burari. On inquiry by Police officials, she told them about the above incident which she has deposed in the Court. Police officials assured her to take action on her complaint. Vol. she did not give any written complaint. She had stated the facts verbally. She does not remember as to whether Police recorded her statement or not. She resiled from her previous statement and was also crossexamined by the Learned Addl. PP for the State.
PW12 Inspector Kamal Duggal is the subsequent 15 of 45 16 FIR No. 47/13 PS - Swaroop Nagar Investigating Officer (IO) of the case, who deposed that on 06/05/2013, she was posted at PS Swaroop Nagar as Sub Inspector. On that day, accused Raj Kumar present in the Court had surrendered himself in the Court. She alongwith Constable Nathu came to the Court. After taking the permission from the Court accused Raj Kumar was interrogated and arrested vide arrest memo Ex. PW5/A bearing her signature at point 'B' and personal search of the accused was taken vide memo Ex. PW5/B bearing her signatures at point 'B'. Accused made disclosure statement Ex. PW5/C bearing her signatures at point 'B'. She obtained one day Police Custody of accused. They reached PS Ashok Vihar for dossier of accused. Accused led them to the spot i.e. place of the incident. He pointed out the place. She prepared the pointing out memo vide memo Ex. PW5/D bearing her signatures at point 'B'. Thereafter, she got conducted the medical examination of accused in BJRM Hospital, Jahangir Puri and thereafter, accused was put inside the lockup in PS - Jahangir Puri. She recorded the statement of Constable Nathu.
PW13 SI Shashi Lata is the initial Investigating Officer (IO) of the case, who deposed that on 15/02/2013, she was posted at PS 16 of 45 17 FIR No. 47/13 PS - Swaroop Nagar Swaroop Nagar. On that day, W/SI Neeraj of PS Burari alongwith the prosecutrix and her mother came to PS Swaroop Nagar and SI Neeraj handed over the FIR bearing No. Zero to SHO and he made his endorsement and same was handed over to Duty Officer for registration of the case on the basis of his case FIR No. 47/13, u/s 376/506 IPC was registered and same was assigned to her for further investigation of the case. She alongwith the prosecutrix reached at BJRM Hospital and she got conducted medical examination of the prosecutrix. She obtained the MLC of prosecutrix. Thereafter, she alongwith the prosecutrix and her mother reached at House No. 5, Gali No. 34, D Block, Kaushik Enclave, Swaroop Nagar, Burari, Delhi. She prepared the site plan at the instance of prosecutrix which is Ex. PW13/A bearing her signatures at point 'A'. She recorded the supplementary statement of prosecutrix and her mother. On 16/02/2013, she moved an application Ex. PW13/B for getting recorded statement of prosecutrix u/s 164 Cr.P.C. and got recorded the statement of prosecutrix Ex. PW9/A, bearing her signatures at point 'B'. On 20/03/2013, she obtained NBW of accused Raj Kumar. On 04/04/2013, she was transferred to PS Bharat Nagar, so she handed over the case file to MHC(R).
17 of 45 18 FIR No. 47/13 PS - Swaroop Nagar The testimonies of the prosecution witnesses shall be dealt with in detail during the course of appreciation of evidence.
6. Statement of accused Raj Kumar was recorded u/s 313 Cr.P.C. wherein he pleaded innocence and false implication. Accused Raj Kumar 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 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.
18 of 45 19 FIR No. 47/13 PS - Swaroop Nagar
9. I have heard Shri Ashok Kumar, Learned Addl. PP for the State and Shri R. Menon, Learned Counsel for the accused and have also carefully perused the entire record.
10. The charge for the offences punishable u/s 376/506 IPC against the accused Raj Kumar is that in June, 2011 at House No. 5, Gali No. 34, B - Block, Kaushik Enclave, Swaroop Nagar, Burari, within the jurisdiction of PS - Swaroop Nagar, he committed rape upon prosecutrix (name withheld) D/o Sh. Krishan Kumar, Age around 25 years against her will and without her consent and that on 12/02/2013, at about 5:00 p.m., at his Clinic at Burari, he criminally intimidated Manju who is mother of prosecutrix (name withheld) by threatening her to kill.
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.
19 of 45 20 FIR No. 47/13 PS - Swaroop Nagar AGE OF THE PROSECUTRIX
12. PW9 - Prosecutrix in her statement recorded in the Court on 30/10/2014 while giving her particulars has stated her age as 25 years.
Since PW9 - prosecutrix has stated her age as 25 years on 30/10/2014 at the time of recording her evidence/statement in the Court and the date of the first alleged incident is in June, 2011, on simple arithmetical calculation, the age of the prosecutrix comes to 21 years, 08 months and 01 day as on 01/06/2011, the date of the first alleged incident in June 2011.
Moreover, the said factum of age of PW9 - prosecutrix has also not been disputed by accused Raj Kumar. 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 PW9 - prosecutrix was aged 21 years, 08 months and 01 day as on 01/06/2011, the date of the first alleged incident in June 2011.
20 of 45 21 FIR No. 47/13 PS - Swaroop Nagar MEDICAL EVIDENCE OF THE PROSECUTRIX
13. PW2 - Dr. Shubham Shukla, JR, BJRM Hospital, Jahangir Puri, Delhi has deposed that on 15/02/2013, one patient/prosecutrix (name withheld) D/o K. K. Jha, Age 28 years female was brought to Hospital for medical examination with the alleged H/O rape. On local examination, no fresh external injury seen and thereafter she was referred to S.R. (Gynae) for further examination. She prepared the MLC and the same is Ex. PW2/A, bearing her signature at point 'A'.
PW7 - Dr. Seema, Medical Officer, BJRM Hospital, Jahangir Puri, Delhi has deposed that she has been deputed by the MS of the Hospital to depose on behalf of Dr. Shalini, SR. Gynae and Dr. Kamakshi Narula, Medical Officer who have since left the services of Hospital and their present whereabouts are not known. She is acquainted with the handwriting and signatures of Dr. Shalini and Dr. Kamakshi Narula as she has seen them signing and writing during the official course of the duties. As per the MLC No. 54600, on 15/02/2013, patient/prosecutrix (name withheld) D/o K. K. Jha, Age about 25 Years, 21 of 45 22 FIR No. 47/13 PS - Swaroop Nagar Female was produced in the Hospital by W/Constable Renu whose gynecological examination was conducted by Dr. Shalini and the said examination is from Portion 'X to X' on the MLC already Ex. PW2/A, bearing the signature of Dr. Shalini at point 'B'.
PW8 - Dr. Vaibhav Gulati, CMO, BJRM Hospital, Delhi has deposed that he has been deputed by the MS of the Hospital to depose on behalf of Dr. Rahul Singh who has since left the services of Hospital and his present whereabouts are not known. He is acquainted with the handwriting and signatures of Dr. Rahul Singh as he has seen him signing and writing during the official course of the duties. As per the MLC No. 54600, on 15/02/2013, patient/prosecutrix (name withheld) D/o K. K. Jha, Age 25 Years, Female was produced in the Hospital by W/Constable Renu whose examination was conducted by Dr. Shubham Shukla, JR under the supervision of Dr. Rahul Singh and was referred to SR Gynae for further examination and management. The said MLC is already Ex. PW2/A bearing the signature of Dr. Rahul Singh at Point 'C'.
Despite grant of opportunity, PW2 - Dr. Shubham Shukla, 22 of 45 23 FIR No. 47/13 PS - Swaroop Nagar PW7 - Dr. Seema and PW8 - Dr. Vaibhav Gulati were not cross examined on behalf of the accused.
In view of above and in the circumstances, the medical and the gynaecological examination vide MLC Ex. PW2/A and from portion 'X to X' on the MLC Ex. PW2/A of PW9 - prosecutrix stands proved on the record.
VIRILITY OF THE ACCUSED RAJ KUMAR
14. PW1 - Dr. Mohit Tiwari, CMO, BJRM Hospital, Jahangir Puri, Delhi has deposed that on 07/05/2013, one patient Raj Kumar S/o Daya Shankar, Age 39 years, male was brought to Hospital for medical examination. The patient was examined by Dr. Divya Kansal, J.R. under his supervision. On local examination no external injury seen. The MLC is Ex. PW1/A, bearing signature of Dr. Divya Kansal at point 'A' and his signature at point 'B'.
There is nothing in the crossexamination of PW1 - Dr. Mohit Tiwari so as to impeach his creditworthiness.
23 of 45 24 FIR No. 47/13 PS - Swaroop Nagar PW6 - Dr. Chhitiz Mohan, Senior Resident (Surgery), BJRM Hospital, Delhi has deposed that on 06/05/2013, at about 5:25 p.m. one patient Raj Kumar S/o Daya Shankar was brought to the Hospital by Constable Nathu for potency test. After examination he was referred to SR (Surgery) for potency test and he has examined the patient. After examination he was of the opinion that there was nothing to suggest that Raj Kumar is incapable to perform sexual intercourse. His examination is at Point 'A to A1' on MLC Ex. PW6/A bears his signature at Point 'B'.
PW7 - Dr. Seema, Medical Officer, BJRM Hospital, Jahangir Puri, Delhi has deposed that she has been deputed by the MS of the Hospital to depose on behalf of Dr. Shalini, SR. Gynae and Dr. Kamakshi Narula, Medical Officer who have since left the services of Hospital and their present whereabouts are not known. She is acquainted with the handwriting and signatures of Dr. Shalini and Dr. Kamakshi Narula as she has seen them signing and writing during the official course of the duties. As per the MLC No. 59018, on 06/05/2013, patient 24 of 45 25 FIR No. 47/13 PS - Swaroop Nagar Raj Kumar S/o Daya Shanker, Age 39 Years, Male was produced in the Hospital by Constable Nathu and his preliminary medical examination was conducted by Dr. Kamakshi Narula vide MLC already Ex. PW6/A bearing the signature of Dr. Kamakshi Narula at Point 'C' and thereafter, he was referred to the SR (Surgery).
Despite grant of opportunity, PW6 - Dr. Chhitiz Mohan and PW7 - Dr. Seema were not crossexamined on behalf of the accused.
In view of above and in the circumstances, it stands proved on the record that accused Raj Kumar was capable to perform sexual intercourse.
15. Now let the testimony of PW9 prosecutrix be perused and analysed.
PW9 Prosecutrix, in her examinationinchief has deposed which is reproduced and reads as under : 25 of 45 26 FIR No. 47/13 PS - Swaroop Nagar "We are five brothers and sisters and my father occasionally visit the house. The name of my brother is Abhishek @ Utkarsh. Treatment for his throat problem was being obtained from Dr. Raj Kumar. The clinic of Dr. Raj Kumar was in Nirankari Colony, Delhi. Once I was having fever and for this I alongwith my mother had visited the clinic of Dr. Raj Kumar. I had visited the clinic of Dr. Raj Kumar for my ailment with my mother in the Year, 2011. Again said of the Year, 2012. When I had visited the clinic of Dr. Raj Kumar for my ailment with my mother no talks as such took place with Dr. Raj Kumar. I can identify Dr. Raj Kumar, if shown to me as I have seen him by face.
At this stage, the wooden partition has been removed. Accused Raj Kumar is present in the Court (correctly identified).
The wooden partition now has been restored to its original position.
Once I had returned from the School to my house I found my mother too much perplexed (Maine Dekha Ki Meri Mother Bahut Pareshan Hai). On my asking the reason for the same, my mother told me that she had given her documents to Dr. Raj Kumar for the purpose of preparation of the ration card but he is not returning the said documents. My mother also told me that he is also too much harassing her (Woh Bahut Jayada Pareshan Kar Raha Hai) on the issue of returning of the documents and arguments had also taken place on this issue between them (Aur Iss Par Un Dono Kai Beech Behais Bhi Hoi The). Thereafter, my mother had gone to PS Burari and had told the Police there that Dr. Raj Kumar is not returning her documents. After the registration of the case at PS Burari it was informed to us by the Police that the jurisdiction of the case does not lie at PS Burari and therefore, the case 26 of 45 27 FIR No. 47/13 PS - Swaroop Nagar is being transferred to PS Swaroop Nagar. Thereafter, we went to PS Swaroop Nagar where the case was registered and the copy of the FIR was given to us. Due to tiredness we did not read the copy of the FIR as was given to us by Police of PS Swaroop Nagar and on the next day when we read the copy of the FIR it was found to contain the allegation of rape against Dr. Raj Kumar which my mother had not made. Immediately, thereafter, we contacted PS Swaroop Nagar and told them that we are not to proceed with this case (Hamai Yeha Case Nahi Karwana Hai). On which Police told me and my mother that all this facts are to be told to the Magistrate. On the same day my statement was recorded before the Magistrate. Police had told me for getting conduct my medical examination but I refused as no rape had been committed with me (Marai Saath Rape Nahi Huwa Tha). Thereafter, the case is pending and proceeding (Uske Baad Case Chal Raha Hai)."
During her further examinationinchief recorded on 23/04/2015, PW9 - prosecutrix has deposed that : "On 14/02/2012 my mother went to PS Burari and informed about the threats extended by accused Raj Kumar when she demanded her documents pertaining to her property. On the same day, I received telephone call of my mother that she was in PS Burari so I went to PS Burari. My mother informed me that Police officials of PS Burari were saying that no case against accused Raj Kumar is made out, however, I and my mother against (again) requested Police officials of PS Burari to register the case. We were asked by the police officials to 27 of 45 28 FIR No. 47/13 PS - Swaroop Nagar wait. After waiting for about 4/5 hours Police officials gave a copy of FIR to us. Police officials obtained my signature on one paper on the pretext to give the receiving of the copy of FIR.
At this stage, the statement of the witness dated 14/02/2013 is shown to her on which she admits her signatures at Point 'A'. Vol. I signed this paper without reading the same so I do not know its contents. The statement of the witness dated 14/02/2013 is Mark PW9/PX. I have gone through the statement Mark PW9/PX at my house and found that Police registered a rape case.
I was also taken by the Police to the Court for recording of my statement before Ld. MM. I have told Ld. MM that no rape case has been got registered by me at PS Burari. My statement was recorded by Ld. MM and it was signed by me.
At this stage, one sealed envelope sealed with the seal of 'BS' lying on the judicial file is opened from which the proceedings u/s 164 Cr.P.C. and the statement u/s 164 Cr.P.C. are taken out. The statement u/s 164 Cr.P.C. is shown to the witness who identifies the same of having been made to the Court. The statement u/s 164 Cr.P.C. is Ex. PW9/A bearing my signature at Point 'A'.
No incident of rape took place with me. Accused Raj Kumar did not do any 'galat kaam' with me."
From the aforesaid narration of PW9 - prosecutrix, it is clear that they are five brothers and sisters and her father occasionally visit the house. The name of her brother is Abhishek @ Utkarsh. Treatment for his throat problem was being obtained from Dr. Raj 28 of 45 29 FIR No. 47/13 PS - Swaroop Nagar Kumar. The clinic of Dr. Raj Kumar was in Nirankari Colony, Delhi. Once she was having fever and for this she alongwith her mother had visited the clinic of Dr. Raj Kumar. She had visited the clinic of Dr. Raj Kumar for her ailment with her mother in the Year, 2011. Again said of the Year, 2012. When she had visited the clinic of Dr. Raj Kumar for her ailment with her mother no talks as such took place with Dr. Raj Kumar. She correctly identified accused Dr. Raj Kumar present in the Court. Once she had returned from the School to her house she found her mother too much perplexed (Maine Dekha Ki Meri Mother Bahut Pareshan Hai). On her asking the reason for the same, her mother told her that she had given her documents to Dr. Raj Kumar for the purpose of preparation of the ration card but he is not returning the said documents. Her mother also told her that he is also too much harassing her (Woh Bahut Jayada Pareshan Kar Raha Hai) on the issue of returning of the documents and arguments had also taken place on this issue between them (Aur Iss Par Un Dono Kai Beech Behais Bhi Hoi The). Thereafter, her mother had gone to PS Burari and had told the Police there that Dr. Raj Kumar is not returning her documents. After the registration of the case at PS Burari it was informed to them by the 29 of 45 30 FIR No. 47/13 PS - Swaroop Nagar Police that the jurisdiction of the case does not lie at PS Burari and therefore, the case is being transferred to PS Swaroop Nagar. Thereafter, they went to PS Swaroop Nagar where the case was registered and the copy of the FIR was given to them. Due to tiredness they did not read the copy of the FIR as was given to them by Police of PS Swaroop Nagar and on the next day when they read the copy of the FIR it was found to contain the allegation of rape against Dr. Raj Kumar which her mother had not made. Immediately, thereafter, they contacted PS Swaroop Nagar and told them that they are not to proceed with this case (Hamai Yeha Case Nahi Karwana Hai). On which Police told her and her mother that all this facts are to be told to the Magistrate. On the same day her statement was recorded before the Magistrate. Police had told her for getting conduct her medical examination but she refused as no rape had been committed with her (Marai Saath Rape Nahi Huwa Tha). Thereafter, the case is pending and proceeding (Uske Baad Case Chal Raha Hai). On 14/02/2012 her mother went to PS Burari and informed about the threats extended by accused Raj Kumar when she demanded her documents pertaining to her property. On the same day, she received telephone call of her mother that she was in PS Burari so 30 of 45 31 FIR No. 47/13 PS - Swaroop Nagar she went to PS Burari. Her mother informed her that Police officials of PS Burari were saying that no case against accused Raj Kumar is made out, however, she and her mother again requested Police officials of PS Burari to register the case. They were asked by the Police officials to wait. After waiting for about 4/5 hours Police officials gave a copy of FIR to them. Police officials obtained her signature on one paper on the pretext to give the receiving of the copy of FIR. The statement dated 14/02/2013 bears her signatures at Point 'A'. Vol. she signed this paper without reading the same so she does not know its contents. The statement of the witness dated 14/02/2013 is Mark PW9/PX. She has gone through the statement Mark PW9/PX at her house and found that Police registered a rape case. She was also taken by the Police to the Court for recording of her statement before Learned MM. She has told Learned MM that no rape case has been got registered by her at PS Burari. Her statement was recorded by Learned MM and it was signed by her. The statement u/s 164 Cr.P.C. is Ex. PW9/A bearing her signature at Point 'A'. No incident of rape took place with her. Accused Raj Kumar did not do any 'galat kaam' with her.
31 of 45 32 FIR No. 47/13 PS - Swaroop Nagar PW9 - 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 : "I alongwith my mother did not go to PS - Burari at about 10:00 p.m. on 14/02/2013. Vol. I and my mother returned at about 10:00 p.m. or 11:00 p.m. on 14/02/2013 from PS - Burari. It is wrong to suggest that on 14/02/2013, at about 10:00 p.m., I alongwith my mother went to PS - Burari. It is correct that my mother and my younger brother Utkarsh were getting treatment from accused Raj Kumar. It is correct that accused used to run a clinic of Homeopathic medicine near Nirankari Bus Stand. I did not go to the clinic of accused Raj Kumar for getting treatment. It is wrong to suggest that I visited the clinic of accused Raj Kumar several times and I was getting treatment form (from) him. On one or two occasions, I alongwith my mother visited the clinic of accused Raj Kumar. Accused Raj Kumar did not ever put proposal of his marriage to me in front of my mother. It is wrong to suggest that accused Raj Kumar had put proposal of his marriage to me in front of my mother. It is wrong to suggest that I did not agree to the proposal of marriage of accused Raj Kumar with me due to the age gap between me and accused and also that I did not like him.
I did not give any statement to Police at PS - Burari. It is wrong to suggest that I gave statement Mark PW9/PX to Police at PS - Burari or that then signed it at point 'A'. I did not state to Police in my statement that on one day in the month of June, 2011, accused Raj Kumar came to my house on the pretext of giving medicines to me. (Confronted with the statement Mark PW9/PX, where it is so recorded). It is wrong to suggest that in the month of June, 2011, accused Raj Kumar, came to my 32 of 45 33 FIR No. 47/13 PS - Swaroop Nagar house on the pretext of giving medicines to me. I did not state to the Police that accused Raj Kumar committed rape upon me and I could not resist as I was ill at that time and no other family members were present in my house. (Confronted with the statement Mark PW9/PX, where it is so recorded). It is wrong to suggest that accused Raj Kumar committed rape upon me and I could not resist as I was ill at that time and no other family members were present in my house. I did not ever remained under the treatment of depression. I did not state to the Police that due this incident, of the committal of the galat kaam with me by accused Raj Kumar, I had gone under depression and for this, I received treatment from Hindu Rao Hospital. (Confronted with the statement Mark PW9/PX, where it is so recorded). It is wrong to suggest that due this incident, of the committal of the galat kaam with me by accused Raj Kumar, I had gone under depression and for this, I received treatment from Hindu Rao Hospital. I did not receive any phone call of the wife of accused Raj Kumar that he is already married and having two children. Accused Raj Kumar did not ever come to my house with a bottle of poison and threatened me either I marry with him or otherwise he will consume the poison or that he would inform the Principal of my School regarding his physical relations with me. It is wrong to suggest that I had stated to the Police in my statement that accused Raj Kumar did not ever come to my house with a bottle of poison and threatened me either I marry with him or otherwise he will consume the poison or that he would inform the Principal of my School regarding his physical relations with me. I do not know that on 12/02/2013, accused Raj Kumar gave threats to my mother to kill her. It is wrong to suggest that I stated to the Police in my statement that on 12/02/2013, accused Raj Kumar gave threats to my mother to kill her. It is correct that accused Raj Kumar obtained signatures and thumb impressions of my mother on 1520 33 of 45 34 FIR No. 47/13 PS - Swaroop Nagar papers and did not permit her to read those papers. It is correct that my mother informed me that accused Raj Kumar forced her to write three letters on the point of knife.
At this stage, the portion 'A1' to 'A2' of the statement Mark PW9/PX is read over to the witness who denies of having made such statement to the Police. It is wrong to suggest that I approached the Police as accused Raj Kumar had committed rape upon me at my house and had also given threats to me.
It is correct that I made the statement u/s 164 Cr.P.C. Ex. PW9/A of my own free will. It is correct that I have stated in my statement u/s 164 Cr.P.C. that my mother had informed me that accused is giving proposal for marriage with me but it was refused by us. It is wrong to suggest that I have made the statement u/s 164 Cr.P.C. under the tutoring and pressure of the accused or that I have concealed the true and actual facts regarding the committal of the galat kaam upon me by accused Raj Kumar in my said statement. Accused Raj Kumar did not ever sent me vulgar messages. It is wrong to suggest that accused Raj Kumar had sent me vulgar messages. No site plan was prepared by the Police in my presence.
At this stage, the statement dated 15/02/2013 is read over to the witness who denies of having made such a statement to the Police. The said statement is Mark PW9/PX1. It is wrong to suggest that I have deposed falsely in order to save the accused as the matter has already been compromised between me and the accused. I came to know that accused had destroyed all the documents on which he obtained the signatures of my mother by giving threats to her. It is wrong to suggest that I am giving a statement favouring accused also for the reason as he has destroyed all the documents on which he had obtained the signatures of my mother by giving threats to her. It is wrong to suggest that I am 34 of 45 35 FIR No. 47/13 PS - Swaroop Nagar deposing falsely as I have been won over by accused. It is wrong to suggest that I am deposing falsely."
During her crossexamination by the Learned Counsel for the accused, PW9 - prosecutrix has deposed that : "It is correct that accused Raj Kumar did not obtain signatures and thumb impressions of my mother on 1520 papers in my presence. It is correct that accused Raj Kumar did not force my mother to write three letters on the point of knife in my presence. It is correct that no threat was given to my mother in my presence. It is correct that no galat kaam was committed upon me by accused Raj Kumar. It is correct that no threat was ever given to me by accused Raj Kumar. It is correct that no vulgar messages were sent to me by accused Raj Kumar. It is correct that I have made the statement of my own without any pressure of anybody."
On analysing the entire testimony of PW9 - prosecutrix it is clearly indicated that during her examinationinchief she has specifically deposed that Police had told her for getting conduct her medical examination but she refused as no rape had been committed with her (Marai Saath Rape Nahi Huwa Tha). No incident of rape took place with her. Accused Raj Kumar did not do any 'galat kaam' with her.
35 of 45 36 FIR No. 47/13 PS - Swaroop Nagar During her crossexamination by the Learned Counsel for the accused, PW9 - prosecutrix has specifically deposed that, "It is correct that accused Raj Kumar did not obtain signatures and thumb impressions of my mother on 1520 papers in my presence. It is correct that accused Raj Kumar did not force my mother to write three letters on the point of knife in my presence. It is correct that no threat was given to my mother in my presence. It is correct that no galat kaam was committed upon me by accused Raj Kumar. It is correct that no threat was ever given to me by accused Raj Kumar. It is correct that no vulgar messages were sent to me by accused Raj Kumar. It is correct that I have made the statement of my own without any pressure of anybody." During her cross examination by Learned Addl. PP for the State she specifically deposed that she made the statement u/s 164 Cr.P.C. Ex. PW9/A of her own free will. The statement u/s 164 Cr.P.C. Ex. PW9/A of the prosecutrix also does not come to the rescue of the prosecution as the same is totally silent regarding the committal of the 'galat kaam' upon her by accused Raj Kumar. She negated the suggestions put to her by the Learned Addl. PP for the State that on 14/02/2013, at about 10:00 p.m., she alongwith her mother went to PS - Burari or that she visited the clinic of accused 36 of 45 37 FIR No. 47/13 PS - Swaroop Nagar Raj Kumar several times and she was getting treatment from him or that accused Raj Kumar had put proposal of his marriage to her in front of her mother or that she did not agree to the proposal of marriage of accused Raj Kumar with her due to the age gap between her and accused and also that she did not like him or that she gave statement Mark PW9/PX to Police at PS - Burari or that then signed it at point 'A' or that in the month of June, 2011, accused Raj Kumar, came to her house on the pretext of giving medicines to her or that accused Raj Kumar committed rape upon her and she could not resist as she was ill at that time and no other family members were present in her house or that due to this incident, of the committal of the galat kaam with her by accused Raj Kumar, she had gone under depression and for this, she received treatment from Hindu Rao Hospital or that she had stated to the Police in her statement that accused Raj Kumar came to her house with a bottle of poison and threatened her either she marry with him or otherwise he will consume the poison or that he would inform the Principal of her School regarding his physical relations with her or that she stated to the Police in her statement that on 12/02/2013, accused Raj Kumar gave threats to her mother to kill her or that she approached the Police as accused Raj 37 of 45 38 FIR No. 47/13 PS - Swaroop Nagar Kumar had committed rape upon her at her house and had also given threats to her or that she has made the statement u/s 164 Cr.P.C. under the tutoring and pressure of the accused or that she has concealed the true and actual facts regarding the committal of the galat kaam upon her by accused Raj Kumar in her said statement or that accused Raj Kumar had sent her vulgar messages or that she has deposed falsely in order to save the accused as the matter has already been compromised between her and the accused or that she is giving a statement favouring accused also for the reason as he has destroyed all the documents on which he had obtained the signatures of her mother by giving threats to her or that she is deposing falsely as she has been won over by accused or that she is deposing falsely.
As discussed hereinbefore, PW9 - prosecutrix has been found to be aged around 22 years, from the testimony of PW9 - prosecutrix, nothing is being indicated that in June, 2011 at House No. 5, Gali No. 34, B - Block, Kaushik Enclave, Swaroop Nagar, Burari, accused Raj Kumar committed rape upon her against her will and without her consent or that on 12/02/2013, at about 5:00 p.m., at his 38 of 45 39 FIR No. 47/13 PS - Swaroop Nagar Clinic at Burari, he criminally intimidated Smt. Manju Jha who is mother of PW9 prosecutrix by threatening her to kill.
Now, let the testimony of PW11 - Smt. Manju Jha, mother of the prosecutrix be perused and analysed.
PW11 - Smt. Manju Jha is the mother of the prosecutrix, who in her examinationinchief has deposed that, she has five children out of which four are daughters and one is son. Prosecutrix (name withheld) is her third child. In the year, 2011 her son Utkarsh was suffering from some disease so she took him to the clinic of Dr. Raj Kumar in Nirankari Colony. She identifies accused Raj Kumar present in the Court (correctly identified). She alongwith her son Utkarsh visited several times in the clinic of Dr. Raj Kumar for his treatment. During those visits she stated to accused that she didn't have ration card. He asked her to give the documents of her house situated at abovesaid address i.e Kaushik Enclave, Burari so that he would help her in applying the ration card. She handed over the photocopies of the documents of her house. After 3/4 months accused Dr. Raj Kumar 39 of 45 40 FIR No. 47/13 PS - Swaroop Nagar shifted his clinic from Nirankari Colony to Sant Nagar. When she asked accused about her ration card then he asked her to wait for some more time and he is trying to get issue the same from the concerned office. She waited for several months but accused could not get issued the ration card so she visited his clinic at Sant Nagar and asked him to return the photocopies of the documents of her house. He again asked to wait for some more time to her but she was not agree to the same and she again asked him to return her documents. On this issue some arguments exchanged between her and accused (Kuch Chhadap Hoo Gae). She returned to her house. It was evening time and she was feeling upset. She decided to approach the Police. She went to PS Burari. On inquiry by Police officials, she told them about the above incident which she has deposed in the Court. Police officials assured her to take action on her complaint. Vol. she did not give any written complaint. She had stated the facts verbally. She does not remember as to whether Police recorded her statement or not.
PW11 - Smt. Manju Jha was also crossexamined by the Learned Addl. PP for the State as she was resiling from her previous 40 of 45 41 FIR No. 47/13 PS - Swaroop Nagar statement which is reproduced and reads as under : "On one occasion I took my daughter/prosecutrix (name withheld) to the clinic of accused Dr. Raj Kumar for her treatment. Accused Dr. Raj Kumar did not propose my daughter/prosecutrix (name withheld) for marriage. It is wrong to suggest that during the treatment of my daughter/prosecutrix (name withheld) accused Raj Kumar proposed her for marriage or that my daughter/prosecutrix (name withheld) refused to the proposal made by accused as he was older than her (Uski Umar Bahut Jayada Thee).
On 12/02/2013 in the evening accused Dr. Raj Kumar did not call me in his clinic and did not obtain my signatures/thumb impressions on 1520 papers. He did not give any threats to kill me. It is wrong to suggest that on 12/02/2013 accused called me in his clinic or that obtained my thumb impressions/signatures on 1520 papers or that he gave threats to kill me.
I went to my village in the month of December, 2012. When I returned from my village my daughter/prosecutrix (name withheld) did not inform me that in my absence accused Raj Kumar came to our house and committed rape upon her. It is wrong to suggest that when I returned from my village my daughter/prosecutrix (name withheld) informed me that in my absence accused Raj Kumar came to our house and committed rape upon her.
Accused Raj Kumar did not give threats to me that if marriage of my daughter/prosecutrix (name withheld) is not performed with him then he will consume poison. It is wrong to suggest that accused Raj Kumar gave threats to me that if marriage of my daughter/prosecutrix (name withheld) is not performed with him then he will consume poison or that for this reason I accompanied by my 41 of 45 42 FIR No. 47/13 PS - Swaroop Nagar daughter Jyoti went to PS Swaroop Nagar and lodged the complaint or that police had registered the FIR and had taken my daughter Jyoti to the Hospital for her medical examination.
At this stage, statement dated 15/02/2013 is shown to the witness and read over to her who denies of having made any such statement to the Police. The said statement is Mark PW11/PX. It is wrong to suggest that the statement Mark PW11/PX was made by me to the Police. It is wrong to suggest that I am deliberately concealing the material facts as I have compromised the matter with accused. It is wrong to suggest that I am deposing falsely as I have been won over by the accused. It is wrong to suggest that I am deposing falsely."
PW11 - Smt. Manju Jha was not crossexamined on behalf of accused despite grant of opportunity.
On careful perusal and analysis of the testimony of PW11 - Smt. Manju Jha, mother of the prosecutrix, it is found that nothing material has come out in her testimony so as to advance the case of the prosecution on the core spectrum of the crime. She has negated the suggestions, as were put to her by the Learned Addl. PP, that during the treatment of her daughter/prosecutrix (name withheld) accused Raj Kumar proposed her for marriage or that her daughter/prosecutrix (name withheld) refused to the proposal made by accused as he was older than 42 of 45 43 FIR No. 47/13 PS - Swaroop Nagar her (Uski Umar Bahut Jayada Thee) or that on 12/02/2013 accused called her in his clinic or that (he) obtained her thumb impressions/signatures on 1520 papers or that he gave threats to kill her or that when she returned from her village her daughter/prosecutrix (name withheld) informed her that in her absence accused Raj Kumar came to their house and committed rape upon her or that accused Raj Kumar gave threats to her that if marriage of her daughter/prosecutrix (name withheld) is not performed with him then he will consume poison or that for this reason she accompanied by her daughter/prosecutrix (name withheld) went to PS Swaroop Nagar and lodged the complaint or that Police had registered the FIR and had taken her daughter/ prosecutrix (name withheld) to the Hospital for her medical examination or that the statement Mark PW11/PX was made by her to the Police or that she is deliberately concealing the material facts as she has compromised the matter with accused or that she is deposing falsely as she has been won over by the accused or that she is deposing falsely.
16. In view of above and in the circumstances, I find that the prosecution has failed to prove its case beyond reasonable doubt against 43 of 45 44 FIR No. 47/13 PS - Swaroop Nagar accused Raj Kumar. The hostility of PW9 - prosecutrix and that of PW11 - Smt. Manju Jha, her mother has knocked out the bottom of the case of the prosecution. There is nothing on record to indicate that in June, 2011 at House No. 5, Gali No. 34, B - Block, Kaushik Enclave, Swaroop Nagar, Burari, accused Raj Kumar committed rape upon PW9 - prosecutrix, aged around 22 years, against her will and without her consent or that on 12/02/2013, at about 5:00 p.m., at his Clinic at Burari, he criminally intimidated Smt. Manju Jha who is mother of PW9 prosecutrix by threatening her to kill.
I accordingly, acquit accused Raj Kumar for the offences punishable u/s 376/506 IPC.
17. In view of above discussion, I am of the considered opinion that as far as the involvement of accused Raj Kumar in the commission of offences punishable u/s 376/506 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 Raj Kumar beyond shadows of all reasonable doubts and there is a room for hypothesis, consistent with that of innocence of 44 of 45 45 FIR No. 47/13 PS - Swaroop Nagar accused Raj Kumar. I, therefore, acquit accused Raj Kumar for the offences punishable u/s 376/506 IPC after giving him the benefit of doubt. Accused Raj Kumar is on bail. However, u/s 437A Cr.P.C. the bail bond of accused Raj Kumar 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 5th Day of November, 2015 Additional Sessions Judge Special Fast Track Court (North District), Rohini, Delhi 45 of 45