Delhi District Court
State vs . Ajay on 16 December, 2015
1
FIR No. 295/13
PS - S.P. Badli
IN THE COURT OF SH. MAHESH CHANDER GUPTA :
ADDITIONAL SESSIONS JUDGE : SPECIAL FAST TRACK
COURT : NORTH DISTRICT : ROHINI : DELHI
SESSIONS CASE NO. : 285/13
Unique ID No. : 02404R0269522013
State Vs. Ajay
S/o Sh. Satish Kumar
R/o A4/50, Sector 20
Rohini, Delhi.
FIR No. : 295/13
Police Station : S.P.Badli
Under Sections : 376/506/328 IPC&
66E, 67A IT Act
Date of committal to session Court : 23.09.2013
Date on which judgment reserved : 20.11.2015
Date on which judgment announced : 16.12.2015
J U D G M E N T
1 of 58 2 FIR No. 295/13 PS - S.P. Badli
1. Briefly stated the case of the prosecution as unfolded by the report under section 173 Cr.P.C. is as under : That on 20.06.2013 at about 7.09AM DD No. 9A dated 20.06.2013, PS S.P. Badli, was handed over to SI Varun Dalal and thereafter, by the order of the Senior police officer the same was entrusted to SI Renu for appropriate action at PS S.P. Badli, where prosecutrix (name withheld being a case u/s. 376 IPC) D/o Sh. Ramesh Malhotra, R/o G14/20, Sector15, Rohini, Delhi, met her, who was inquired into and her counseling was got done from Nazma Khatoon, NGO Counselor. Prosecutrix made the statement which is to the effect that, she lives at the above address with her father and younger sister. Her mother has since expired about three years back due to some disease. She is working in Ishan Hospital for the last about 1 to 1 ½ years. A person by the name Ajay also works in the said hospital. About 1015 days back in the morning she was on her duty in the hospital and she went to the basement of the hospital for taking the register, where in the room Ajay was standing, he called her to him (apne pass bulaya) and made her smell a handkerchief, after which she started feeling giddy and she was not in her consciousness as to what was done with her, after 2 of 58 3 FIR No. 295/13 PS - S.P. Badli about half an hour she regained consciousness and saw that all her clothes had been removed and she had been raped. Thereafter, she after putting on her clothes and taking her register came up (uppar aa gae). She was too much frightened at that time and was not able to compose her mind as to what she should do. Due to fear and shame she could not gather the courage to disclose the incident to anyone. One week thereafter, her friend Aarti told her that Ajay has made an obscene video of his and of her (prosecutrix) in her (Aarti) mobile phone, then she asked Ajay regarding this video on which he said that he has prepared this video to defame her and if she disclosed about his video to anyone or will make the complaint with the police then he will kill her, due to this fear she did not make any complaint to the police. Then on Monday Aarti told her (prosecutrix) regarding the 'badtamiji' done with her, from which she also gathered some courage and today (on 20.06.2013) Aarti made the call at No. 100 and police took her (prosecutrix) to the police station. She has made the statement in the presence of her father without any pressure. On the basis of the statement and from the circumstances, finding that offences u/s 328/376/506 IPC & 66E, 67A IT Act appeared to have been committed, the case was got registered and the 3 of 58 4 FIR No. 295/13 PS - S.P. Badli investigation was proceeded with by SI Renu. During the course of investigation medical examination of the prosecutrix was got done and the sealed exhibits handed over by the doctor after her medical examination was taken into police possession. Place of incident was inspected and the site plan was prepared at the instance of the prosecutrix. Accused Ajay was arrested on the identification of the prosecutrix after finding sufficient evidence against him and his medical examination was got conducted and the sealed exhibits handed over the by doctor after his medical examination were taken into police possession. Mobile phone of Aarti, friend of prosecutrix was also taken into police possession. Thereafter, investigation was handed over to Insp. Sanjeeta, who during the course of investigation seized DVR for obtaining footage of CCTV at the spot. Photocopies of the attendance register of the hospital were obtained. The call details of the mobile phones of Ajay and Aarti were obtained. Statements of the witnesses were recorded u/s 161 Cr.P.C. The sealed exhibits were sent to the FSL.
Upon completion of the necessary further investigation 4 of 58 5 FIR No. 295/13 PS - S.P. Badli challan for the offences u/s 328/376/506 IPC & 66E, 67A IT Act was prepared against accused Ajay and was sent to the Court for trial.
2. Since the offence under sections 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 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 376/328/506 IPC & u/s 66E & 67A Information and Technology Act was made out against accused Ajay. 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 23 witnesses. PW1 - HC Devender, PW2 - ASI Shakti Raj, PW3 - W/Ct. Shipra, PW4 - Dr. Kumar Akhilesh, CMO, BSA Hospital, Rohini, Delhi, PW5 - Dr. Mukesh Kumar, PW6 - Dr. Minal, Gynae SR, 5 of 58 6 FIR No. 295/13 PS - S.P. Badli BSA Hospital, Rohini, Delhi, PW7 - Ct. Panna Lal, PW8 - Ct. Dhirender, PW9 - Ct. Deepak, PW10 - Dr. Arpana Bansal, Director, Ishan Hospital, PW11 - Sh. Rajeev Sharda, Alternate Nodal Officer, Reliance Communication Ltd., PW12 - Israr Babu, Alternate Nodal Officer, Vodafone Mobile Service Ltd., PW13 - Sh. Dheeraj Mor, MM, Distt. Court Saket, Delhi, PW14 - Ct. Baldev Singh, PW15 - Prosecutrix (name withheld), PW16 - Dr. N.P. Waghmare, Asstt. Director, FSL, Rohini, PW17 - Ms. Aarti D/o Sh. Gynander, PW18 - Ms. Sunita Gupta, Senior Scientific Officer (Biology), FSL, Rohini, Delhi, PW19 - Insp. Sanjita, PW20 - Sh. Nitin Kumar, PW21 - Ramesh Malhotra, PW22 - SI Renu and PW23 SI Varun Dalal.
5. In brief the witnessography of the prosecution witnesses is as under : PW1 HC Devender is the MHC(M), who deposed that on 20.6.2013 he was posted at PS S P Badli as MHC (M). On that day, SI Renu deposited one sealed pulanda sealed with the seal of RS and the entry was made in the register no.19 at serial no. 3884. The copy of the same is exhibited as Ex.PW1/A. (OSR). Both the pullandas were sent to 6 of 58 7 FIR No. 295/13 PS - S.P. Badli FSL, Rohini through HC Dhirender on 17.7.2013 vide RC No. 207/21/13 and he made entry in this regard at point A on Ex.PW1/A. On 21.6.2013 SI Renu again deposited one sealed pulanda sealed with the seal of RS and the entry was made by him in the register no.19 at serial no. 3885. On the same day two pullandas sealed with the seal of Dr. BSAH, Casualty, Govt of Delhi along with two sample seals and he made entry in register no. 19 below the above entry in the serial no. 3885. The copy of the same is exhibited as Ex.PW1/B. (OSR). Two pullandas along with the FSL result were received on 28.10.2013 through HC Devender Singh and he made entry in this regard at point B on Ex.PW1/B. Two pullandas and two sample seals were sent to FSL, Rohini on 28.6.2013 vide RC No. 189/21/13 through Ct. Panna Lal and entry in this regard was made at point C on Ex.PW1/B. On 22.7.2013 W/ Inspector Sanjita again deposited one sealed pulanda sealed with the seal of SJ and the entry was made by him in the register no.19 at serial no. 3989. The copy of the entry is exhibited as Ex.PW1/C (OSR). The above pullanda was sent to FSL Rohini through Ct. Rajender on 31.10.2013 vide RC No. 278/21/13 and the entry in this respect was made at point A on Ex.PW1/C. He has also brought the RC Register and copies of RC No. 7 of 58 8 FIR No. 295/13 PS - S.P. Badli 189/21/13, 207/21/13 and 278/21/13. The same were exhibited as Ex.PW1/D1, PW1/D2 and PW1/D3 respectively. (OSR). The copy of acknowledgment of the case pullanda acceptance by FSL, Rohini given to respective Constables as per above RC and which were deposited by the concerned official after returning to Police Station on the respective dates. The copies of the same are exhibited as Ex.PW1/E1, E2 and E3 respectively. (OSR).
PW2 - ASI Shakti Raj is the Duty Officer, who deposed that on 20.6.2013 he was working as Duty Officer at PS S P Badli and at that time he was Head Constable. His duty timing was from 8.00 AM to 4 PM. On that day at about 9.30 AM W/SI Renu produced a Tehrir on the basis of which he got registered the FIR from computer operator correctly vide FIR No. 295/13 u/s 328/376/506 IPC /67A I T Act. After the registration of FIR, another computerized copy of FIR and original Tehrir handed over to W/SI Renu for further investigation. He has also brought the original FIR register and the copy of FIR is exhibited as Ex.PW2/A bearing his signature at point A. He has also made endorsement on the rukka Ex.PW2/B signed by him at point X regarding 8 of 58 9 FIR No. 295/13 PS - S.P. Badli registration of FIR vide DD No. 15A. He has also brought the Rojnamacha containing the DD No.9A, the copy of said DD No. 9A is Ex.PW2/C. (OSR).
PW3 - W/Ct. Shipra, who deposed that on 20.6.2013 she was posted at PS S P Badli and on that day as per the instructions of SI Renu she took the prosecutrix Bhawana to BSA Hospital and got conducted her medical examination. After medical examination the concerned doctor had handed over the sealed pullandas and a sample seal sealed with the seal of Dr. BASH, Casualty, Govt of Delhi and the same was handed over to IO who seized the same vide memo Ex.PW3/A, bears her signatures at point A. PW4 Dr. Kumar Akhilesh CMO BSA Hospital, Rohini Delhi, who deposed that on 21.06.13 one Ajay S/o Sh. Satish Kumar age about 25 years male was brought to the hospital for medical examination. Patient was initially examined by Dr. Deepak Garg Junior Resident under his supervision. On examination there is lacerated, swelling approx 1x1 cm over the preauricular region left side. Thereafter, the patient was 9 of 58 10 FIR No. 295/13 PS - S.P. Badli referred to SR surgery. At present Dr. Deepak Garg is not working in their hospital and his present whereabouts are not known. He is acquainted with the handwriting and signatures of the Dr. Deepak Garg as he has seen him while writing and signing during the course of his duty. The MLC is Ex. PW4/A bearing the signatures of Dr. Deepak Garg at pt. A. PW5 - Dr. Mukesh Kumar, SR Forensic Medicine BSA Hospital, Rohini Delhi, who deposed that on 21.06.13 one Ajay S/o Sh. Satish Kumar age about 25 years male was brought to the hospital for medical examination. After initially examination patient was referred to forensic department whereabouts patient was examined by him. After examination he opined that there is nothing to suggest that the patient is incapable of performing sexual intercourse. His report is Ex. PW5/A bearing his signatures at pt. A. PW6 - Dr. Minal, Gynae SR, BSA Hospital, Rohini Delhi, who deposed that on 20.06.13 one patient/prosecutrix (name withheld) D/o Sh. Ramesh Malohtra age 27 years female was brought to the 10 of 58 11 FIR No. 295/13 PS - S.P. Badli hospital with the alleged history of sexual assault with known Xray technician at professional place (Ishaan Hospital Sec. 19, Rohini, Delhi) Patient had given history of sexual assault 15 days back at hospital. General condition was fair. LMP17.06.13. P/Asoft,P/E no sign of external injury/trauma. Vulva, vagina healthy. No bleeding. P/S No evidence of injury or tear. Hymen torn. UPTnegative. Samples were taken sealed, and handed over to the concerned police officer. She prepared the MLC and the same is Ex. PW6/A bearing her signatures at pt. A. PW7 - Constable Panna Lal, who deposed that on 28.6.2013, he was posted as Constable in PS S.P. Badli. On that day on the instruction of IO, he took two sealed pulindas alongwith sample seal from the MHC(M) for depositing the same in FSL Rohini vide RC No. 189/21/13. He deposited the same in FSL and thereafter deposited the acknowledgment receipt with the MHC(M). The sealed pulindas remained intact during his custody.
PW8 - Constable Dhirender, who deposed that on 17.7.2013, 11 of 58 12 FIR No. 295/13 PS - S.P. Badli he was posted as Constable in PS S.P. Badli. On that day on the instruction of IO, he took two sealed pulindas alongwith sample seal from the MHC(M) for depositing the same in FSL Rohini vide RC No. 207/21/13. He deposited the same in FSL and thereafter deposited the acknowledgment receipt with the MHC(M). The sealed pulindas remained intact during his custody.
PW9 - Constable Deepak, who deposed that on 21.6.2013, he was posted as Constable in PS S.P. Badli. On that day he was called by SI Renu at near Ishaan Hospital where he met SI Renu and accused Ajay. Thereafter, they took accused Ajay to BSA Hospital where he was medically examined and after medical examination, doctor handed over sealed pulinda containing exhibits and same was seized by the IO vide seizure memo Ex. PW9/A, bearing his signature at point A. Thereafter, they came back to Police Station.
PW10 - Dr. Arpana Bansal, Director, Ishan Hospital, 1/8B, Sector19, Rohini, Delhi, who deposed that she is running hospital named Ishan Hospital, Rohini, at the aforesaid address. She is director of 12 of 58 13 FIR No. 295/13 PS - S.P. Badli the hospital and also eye specialist. Prior to 56th months of June, 2013, Bhawna used to work as receptionist in her hospital. Accused Ajay used to work as Xray technician in her hospital and he was working in the hospital prior to 67 months of June, 2013. One Aarti also used to work in her hospital as nurse and there was one Vishnu, who also used to work in the hospital as Public Relation Officer/Field officer. Before the registration of this case, she was not aware of this case. After the registration of present case, she had come to know about the incident. At about 7.00 a.m., before the registration of FIR, 34 people came at their hospital and at that time, Vishnu and Ajay were on night duty and they were thrashed by those people. She had come to know after her return to the hospital that there was some misbehaviour with Bhawna by Ajay. On 22/07/2013, she had handed over the photocopy of the attendance register pertaining to the month May, June, July, 2013 containing attendance record of Vishnu, Ajay, Bhawna and Aarti, to the police. She had also handed over the BDVR containing the CCTV footage of last recording. Seizure memo of photocopies of three pages of attendance register is now Ex. PW10/A. Today, she has brought the original attendance register containing the aforesaid entries of May, June and July, 2013 (Original 13 of 58 14 FIR No. 295/13 PS - S.P. Badli seen and returned). Attendance sheet of the month May, June and July, 2013 is Ex. PW10/B1 to B3. Seizure memo of the digital video recorded is now Ex. PW10/C and bears her signatures at point A. The BDVR containing the CCTV footage of the last recording was handed over to the police and the same was seized vide seizure memo already Ex. PW10/C bearing her signatures at point A. PW11 - Sh. Rajeev Sharda, Alternate Nodal Officer, Reliance Communication Ltd. Maharaja Ranjeet Singh Marg, New Delhi2, who deposed that he has brought the summoned record. As per their record mobile no. 8010379528 is in the name of Subhash Thakur S/o Umesh Thakur, R/o H.No. 51 Anchal Simari Bakhatiyar Pur, Distt. Sarahasa, Bihar, local address C/o Rishpal Singh, H.No. 35, Sector37, Shiv Mandir Khandsa, Gurgaon, Haryana. The call details of the abovesaid mobile from 15.05.2013 to 20.06.2013 is Ex. PW11/A bearing his signature at Point A. The certificate u/s 65B of The Evidence Act is Ex.PW11/B bearing his signature at PointA. The copy of the customer application form alongwith I.D. Proof is Ex. PW11/C (colly) (OSR).
14 of 58 15 FIR No. 295/13 PS - S.P. Badli PW12 - Israr Babu, Alternate Nodal Officer, Vodafone Mobile Service Ltd. C45 Okhla PhaseII, New Delhi20, who deposed that he has brought the summoned record. As per their record mobile no. 9911272706 is in the name of Ajay S/o Satish Kumar, R/o A4, 50, Sector20 Rohini Extn. Delhi. The call details of the abovesaid mobile from 15.05.2013 to 20.06.2013 is Ex. PW12/A bearing his signature at Point A. The certificate u/s 65B of The Evidence Act is Ex.PW12/B bearing his signature at PointA. The copy of the customer application form alongwith I.D. Proof is Ex. PW12/C (colly) (OSR). The Cell I.D. Chart is Ex. PW12/D bearing his signature at PointA. PW13 - Sh. Dheeraj Mor, Ld. MM, Distt. Court Saket, Delhi, who deposed that on 21.06.2013 he was posted as MM in Rohini Court. On that day an application for recording statement u/s 164 Cr.P.C of victim Bhawna D/o Parvesh, Age about 27 Years, R/o G14/20, Sector15, Rohini, Delhi was marked to him. IO SI Renu has produced victim Bhawna and identified her and he recorded her statement in this regard. IO was asked to leave the chamber. He put certain preliminary questions to the victim and after satisfying himself that she is making the 15 of 58 16 FIR No. 295/13 PS - S.P. Badli statement voluntarily he proceeded to record her statement. His proceedings in this regard is Ex.PW13/A bearing his signature at Point A. Statement of victim Bhawna recorded by him is Ex.PW13/B bearing his signature at PointA and of Bhawna at PointB. After recording the statement he issued the certificate regarding its correctness and the same is Ex. PW13/C bearing his signature at PointA. Ahlmad was directed to give the copy of the same on proper receipt and directed to sent the proceedings to the concerned MM in sealed cover vide Ex.PW13/D bearing his signature at PointA. PW14 - Constable Baldev Singh, who deposed that on 20.06.2013 he was posted as Ct. in PS S.P. Badli. On that day he alongwith W/SI Renu and complainant Bhawna reached near Ishan Hospital, Sector19, Rohini and from there at the instance of complainant apprehended the accused Ajay present in the court today. He was interrogated and arrested vide arrest memo Ex. PW14/A and his personal search was conducted vide memo Ex. PW14/B, both bearing his signature at PointA. IO recorded his statement.
16 of 58 17 FIR No. 295/13 PS - S.P. Badli PW15 - Prosecutrix is the victim, who deposed some facts regarding the incident and proved her statement made to the police Ex.PW15/A and her statement recorded u/s 164 Cr.P.C Ex. PW13/B. She resiled from her previous statement and was also crossexamined by the Learned Addl. PP for the State.
PW16 - Dr. N. P. Waghmare, Asstt. Director, FSL, Rohini, who deposed that on 31.10.2013, one sealed parcel in connection with the present case was received by their Office and the same was marked to him for examination. He tallied the seal with the specimen seal and on opening the parcel it was found contained one Sozo H.264 Network DVR Marked as Ex. DVR1 and one hard disk Marked as Ex. HDD1 and on examination, the exhibit Marked HDD1 was unable to attached to forensic work station so data could not be retrieved from HDD1. He prepared detailed report is Ex. PW16/A bearing his signature at point 'A'. On 17.07.2013, two sealed parcels were received by their Office and the same was marked to him for examination. He tallied the seal with the specimen seal and on opening the parcels, two mobile phones, two memory cards and one SIM card were taken out. On examination, the 17 of 58 18 FIR No. 295/13 PS - S.P. Badli data containing in mobile phone Marked MP1, two memory cards Marked MC1 & MC2 and the SIM Marked as SC1 was retrieved and provided him CD Marked as Annexure CD1. No data could be retrieved from mobile phone Marked as MP2 as the mobile phone was password protective and the facility to breakdown the password is not available in the laboratory. He prepared detailed report dated 28.10.2013 which is Ex. PW16/B. CD was lying in one envelope lying on file the seal of the envelope was partially broken. He proved the CD Ex. P1. He identified the mobile phones and DVR with hard disk and also proved the DVR with hard disk Ex. P2, the Mobile phone Marked MP1 Ex. P3, the memory card Marked MC1 Ex. P4 and SIM Card Marked as SC1 Ex. P5, the Mobile phone Marked MP2 Ex. P6 and the memory card Marked MC2 Ex. P7.
PW17 Aarti, is the friend of the prosecutrix, who deposed that in the year 2013 she was working as Staff Nurse in Ishan Hospital, Sector19, Jail Road, Rohini, Delhi. The prosecutrix (name withheld) used to work as Receptionist in Ishan Hospital during that period. She knows accused Ajay present in the court (correctly identified) as he used 18 of 58 19 FIR No. 295/13 PS - S.P. Badli to work in XRay Deptt. in Ishan Hospital at that time. Accused Ajay had picturised/prepared one video of prosecutrix (name withheld) and that video was prepared in the room of Dr. Dinesh Bansal, situated in the basement of the hospital. The video was seen by her as it was transmitted by accused on her mobile phone and the same was found to be obscene depicting accused Ajay removing the clothes of prosecutrix (name withheld) and was kissing. On which she made enquiry from prosecutrix Bhawana and she told her that accused Ajay had made her to eat something and thereafter, he did 'jabardasti' upon her. The said video had been transmitted to all the staff members on their mobile phones by accused Ajay. After sometime she was on night duty, Vishnu, PRO, who was posted in the hospital, he did the same misconduct with her (usne bhi merai saath wahi baadtamiji kari). Thereafter, both accused Ajay and Vishnu threatened her, the way they have prepared the video of prosecutrix (name withheld) in the same manner after preparing her video they will transmit the same in the market. Thereafter, she made a complaint to her Director Dr. Dinesh Bansal and also told to her staff members. Director Dr. Dinesh Bansal told them [(she and prosecutrix (name withheld)] "if they have (Ajay and Vishnu) done so it is better 19 of 58 20 FIR No. 295/13 PS - S.P. Badli they both leave the job and he will not get both of them (Vishnu and Ajay) out of job." Thereafter, she resigned from the Ishan Hospital. On being questioned by her elder brother as to why she is not going to the job, thereupon, after putting her under 'oath' (kasam dilakar), she disclosed all about the incident to him. She alongwith prosecutrix (name withheld) went to PS S.P. Badli and got lodged their complaints. Her (PW17) mobile phone Make Samsung Glaxay was also seized by the police vide seizure memo Ex. PW17/A bearing her signature at PointA. She identified her mobile phone (Marked as MP2) containing one memory card (Marked as MC2) already Ex. P6 & Ex. P7 respectively.
PW18 - Ms. Sunita Gupta, Senior Scientific Officer (Biology), FSL Rohini, Delhi, who deposed that on 28.06.2013, two sealed parcels were received in the FSL in connection with the present case and same were marked to her for examination. The parcels were opened and she examined the exhibits biological as well as serologically and gave her two reports, which were Ex.PW18/A & Ex.PW18/B, bearing her signatures at point A. 20 of 58 21 FIR No. 295/13 PS - S.P. Badli PW19 - Insp. Sanjita is the last Investigating Officer (I.O) of the case, who deposed that on 28.06.2013 she was posted as Inspector CAW Cell Outer Distt. On that day she received the case file of the present case as further investigation of this case was entrusted to her. She perused the case file. On 17.07.2013 she got deposited the exhibits in FSL through Ct. Dhirender vide RC No. 207/21/13. On 22.07.2013 she went to Ishan Hospital and obtained the CCTV footage from DVR. Same was seized vide seizure memo already Ex. PW10/C bearing her signature at PointB. She also obtained the photocopies of attendance record of accused Ajay and victim for the month of May, June and July, 2013. Same was seized vide seizure memo already Ex. PW10/A bearing her signature at PointB. The CCTV footage and the photocopies of the attendance register were produced by Dr. Aruna Bansal. She recorded the statements of the witnesses. On 31.10.2013 the DVR was sent to FSL through Ct. Rajender vide RC No. 278/21. After completing the investigation she filed the chargesheet. She collected the FSL result and filed it in the Court.
PW20 - Sh. Nitin Kumar is the Photographer, who deposed 21 of 58 22 FIR No. 295/13 PS - S.P. Badli that he is having photography studio in the name and style of Jeet Photo Studio. On 08.08.2013 he went to Ishan Hospital on receiving a call from IO W/SI Sangeeta and took photographs of the spot as per the direction of the IO. After developing the photographs he handed over the photographs and negatives to one lady police official in Police Station. He could not produce the negatives as she has already handed over the same to one lady police official. The photographs of the spot placed on the record. The same was Ex. PW20/A1 to Ex. PW20/A5.
PW21 - Ramesh Malhotra is the father of the prosecutrix, who deposed that one day in the year, 2013 (day and month he does not remember) Aarti who was working in the same hospital where his daughter/prosecutrix (name withheld) was working came to their house at 6.30 AM. Aarti was working as Nurse in Ishan Hospital and his daughter was working there as Receptionist. She asked his daughter to accompany her and his daughter went with her. After sometime he also followed his daughter and reached in the hospital. He saw that the brother of Aarti was beating accused Ajay in one room. He enquired from Aarti as to why she was beating accused Ajay present in the court 22 of 58 23 FIR No. 295/13 PS - S.P. Badli (correctly identified). Aarti told him that Ajay had committed 'wrong act' with his daughter and he should not speak as she was their well wisher. Aarti and her brother dialed at No. 100. PCR came and took them to PS S.P. Badli. Statement was recorded on the dictation of Aarti by some lady police official. He does not know what was recorded in that statement. He was asked to sit on one side as it was the matter involving the ladies and therefore, statement could not be recorded in his presence. He resiled from his previous statement and was also cross examined by the Learned Addl. PP for the State.
PW22 - SI Renu is the second Investigating Officer (I.O) of the case, who deposed that on 20.06.2013 she was posted at PS K.N.K. Marg. On that day she received a called (call) from PS S.P. Badli. Thereafter she reached at PS SP Badli where she received the DD No. 9A which is already Ex. PW2/C. prosecutrix also me (met) at PS. NGO Najma Khatun was also present at PS. In the presence of NGO she made enquiries from prosecutrix and recorded her statement which is already Ex.PW15/A and same was read over and explained to her after finding it to be the correct. She signed the same at point A and she attested at point 23 of 58 24 FIR No. 295/13 PS - S.P. Badli B. She prepared rukka Ex.PW22/A, bearing her signatures at point A and handed over to DO. Duty officer registered the FIR and he handed over her computer generated copy of FIR which is already Ex.PW1/A and original rukka to her. Thereafter, she alongwith prosecutrix went to the spot. There on her (prosecutrix) pointing out she prepared site plan Ex.PW22/B which bears her signatures at point A. Prosecutrix was sent for her medical examination with Wct. Shipra. After her medical examination, prosecutrix and constable Shipra reached at PS S.P.Badli where Ct. Shipra handed over her MLC of prosecutrix which is already Ex.PW6/A and exhibits of the present case alongwith sample seal with the seal of BASH hospital. Same were taken into possession vide seizure memo already Ex.PW3/A bearing her signatures at point B. The exhibits were deposited with MHC(M). Thereafter, she alongwith staff and prosecutrix went in search of the accused. When they reached outside the Ishan Hospital, one person was found standing there. On seeing to him by the prosecutrix she informed that he is the accused Ajay. Accused Ajay was apprehended and arrested vide arrest memo already Ex.PW14/A and his personal search was conducted vide memo Ex.PW14/B, both these memos bears her signatures at point B. Accused 24 of 58 25 FIR No. 295/13 PS - S.P. Badli made his disclosure and same is Ex.PW22/C which bears her signatures at point A. Accused was sent for his medical examination with Ct. Deepak. After the medical examination of the accused Deepak, they came at PS and Ct. Deepak handed over her MLC of accused Ajay which is already Ex.PW4/A and he also handed over the exhibits in a sealed condition and same were taken into possession vide seizure memo already Ex.PW9/A bearing her signatures at point B. She recorded the statement of witnesses, exhibits were deposited with MHC(M). Accused was sent to lockup. On 21.06.13 accused was taken out from lockup and he pointed out the place of occurrence vide memo Ex.PW22/D bearing her signatures at point A. Accused also got recovered one mobile phone make Samsung, black color and same was taken into possession vide seizure memo Ex.PW22/E bearing her signatures at point A. Accused was again taken to BSA hospital for his potency test. Thereafter, he was produced in the court and sent to JC. On 21.06.13, prosecutrix was produced before the Ld. MM and thereafter, her statement u/s 164 CrPC was got recorded which is already Ex.PW13/B. Thereafter, she moved an application Ex.PW22/F with the request for providing the copy of the statement u/s 164 CrPC of prosecutrix and same was allowed. The 25 of 58 26 FIR No. 295/13 PS - S.P. Badli mobile phone of Arti friend of prosecutrix was also seized vide seizure memo already Ex.PW17/A bearing her signatures at point B. Case property was deposited with MHC(M). She recorded the statement of witnesses during the course of investigation. Thereafter, further investigation was entrusted to W/Inspr. Sanjeeta.
PW23 - SI Varun Dalal is the initial Investigating Officer (IO) of the case, who deposed that on 20.06.13 he was posted as Sub Inspector at PS S.P.Badli. On that day he was performing the emergency duty. On that day at about 7.09 a.m. he received DD no. 9 E and after receiving the same, he reached Ishan Hospital which is in Sector19, Rohini. There he met complainant (name withheld). Complainant had visited the police station with him. There he came to know that the offence of rape had been committed with her. He gave the information to WSI Renu. She visited the police station and she carried out further inquiries from complainant (name withheld) and he was relieved.
The testimonies of the prosecution witnesses shall be dealt with in detail during the course of appreciation of evidence.
26 of 58 27 FIR No. 295/13 PS - S.P. Badli
6. Statement of accused Ajay was recorded u/s 313 Cr.P.C. wherein he pleaded innocence and false implication. Accused Ajay 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.
9. I have heard Sh. Ashok Kumar, Learned Addl. PP for the State and Sh. N.K. Kapoor, Learned Counsel for the accused and have 27 of 58 28 FIR No. 295/13 PS - S.P. Badli also carefully perused the entire record.
10. The charge for the offences punishable u/s 376/328/506 IPC & 66E & 67A Information and Technology Act against the accused Ajay is that about 1015 days prior to 20.06.2013 at Basement of Ishaan Hospital, 8B Pocket1, Sector19, Rohini, within the jurisdiction of PS S.P. Badli, accused Ajay administered some intoxicant/stupefying substance to Prosecutrix (name withheld) D/o Ramesh Malhotra, with intent to commit rape upon her and thereafter committed rape upon her against her will and without her consent and at the time of committing rape he (accused Ajay) prepared video movie with the help of his mobile phone which he circulated/public transmitted on the mobile phones of one Aarti and other staff members of the hospital and also criminally intimidated her 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 28 of 58 29 FIR No. 295/13 PS - S.P. Badli interest of justice.
AGE OF THE PROSECUTRIX
12. PW15 - prosecutrix in her statement recorded in the Court on 24.09.2014 while giving her particulars has stated her age as 27 years.
Since PW15 - prosecutrix has stated her age as 27 years on 24.09.2014 at the time of recording her evidence/statement in the Court and the date of alleged incident is about 1015 days prior to 20.06.2013, on simple arithmetical calculation, the age of the prosecutrix comes to 25 years, 08 months and 11 days as on the date of alleged incident on 05.06.2013 about 1015 days prior to 20.06.2013.
Moreover, the said factum of age of PW15 - prosecutrix has also not been disputed by accused Ajay. 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 29 of 58 30 FIR No. 295/13 PS - S.P. Badli PW15 - prosecutrix was aged 25 years, 08 months and 11 days as on the date of the alleged incident on 05.06.2013 about 1015 days prior to 20.06.2013.
MEDICAL EVIDENCE OF THE PROSECUTRIX
13. PW6 - Dr. Minal, Gynae SR, BSA Hospital, Rohini Delhi, has deposed that on 20.06.13 one patient/prosecutrix (name withheld) D/o Sh. Ramesh Malhotra age 27 years female was brought to the hospital with the alleged history of sexual assault with known Xray technician at professional place (Ishaan Hospital Sec. 19, Rohini, Delhi) Patient had given history of sexual assault 15 days back at hospital. General condition was fair. LMP17.06.13. P/Asoft,P/E no sign of external injury/trauma. Vulva, vagina healthy. No bleeding. P/S No evidence of injury or tear. Hymen torn. UPTnegative. Samples were taken sealed, and handed over to the concerned police officer. She prepared the MLC and the same is Ex. PW6/A bearing her signatures at pt. A. Despite grant of opportunity, PW6 - Dr. Minal Gynae SR, 30 of 58 31 FIR No. 295/13 PS - S.P. Badli was not crossexamined on behalf of the accused.
In view of above and in the circumstances, the medical/gynecological examination vide MLC Ex. PW6/A of PW15
- prosecutrix stands proved on the record.
VIRILITY OF THE ACCUSED AJAY
14. PW4 Dr. Kumar Akhilesh CMO BSA Hospital, Rohini Delhi, has deposed that on 21.06.13 one Ajay S/o Sh. Satish Kumar age about 25 years male was brought to the hospital for medical examination. Patient was initially examined by Dr. Deepak Garg Junior Resident under his supervision. On examination there is lacerated, swelling approx 1x1 cm over the preauricular region left side. Thereafter, the patient was referred to SR surgery. At present Dr. Deepak Garg is not working in their hospital and his present whereabouts are not known. He is acquainted with the handwriting and signatures of the Dr. Deepak Garg as he has seen him while writing and signing during the course of his duty. The MLC is Ex. PW4/A bearing the signatures of Dr. Deepak Garg at pt. A. 31 of 58 32 FIR No. 295/13 PS - S.P. Badli PW5 - Dr. Mukesh Kumar, SR Forensic Medicine BSA Hospital, Rohini Delhi, has deposed that on 21.06.13 one Ajay S/o Sh. Satish Kumar age about 25 years male was brought to the hospital for medical examination. After initially examination patient was referred to forensic department whereabouts patient was examined by him. After examination he opined that there is nothing to suggest that the patient is incapable of performing sexual intercourse. His report is Ex. PW5/A bearing his signatures at pt. A. Despite grant of opportunity, PW4 - Dr. Kumar Akhilesh, CMO and PW5 - Dr. Mukesh Kumar, SR Forensic Medicine, were not crossexamined on behalf of the accused.
In view of above and in the circumstances, it stands proved on the record that accused Ajay was capable of performing sexual intercourse.
BIOLOGICAL AND SEROLOGICAL EVIDENCE 32 of 58 33 FIR No. 295/13 PS - S.P. Badli
15. PW18 - Ms. Sunita Gupta, Senior Scientific Officer (Biology), FSL Rohini, Delhi, has proved the biological and serological reports Ex. PW - 18/A and Ex. PW - 18/B respectively bearing her signatures at points 'A'.
As per biological report Ex. PW - 18/A the description of articles contained in parcel and result of analysis reads as under : DESCRIPTION OF ARTICLES CONTAINED IN PARCEL Parcel '1' : One sealed cardboard box sealed with the seal of "CASUALTY OF 01.07.12 GOVT OF DELHI, DR BSAH"
containing exhibits '1a', '1b', '1c', '1d', '1e', '1f', '1g', '1h', '1i', '1j', '1k1', '1k2', '1k3', '1l', '1m', '1n1', '1n2', '1n3', '1o1', '1o2', '1o3', '1p1', '1p2', '1q1', '1q2' & '1r'.
Exhibit '1a' : Cotton wool swab on a stick kept in a test tube labeled as Body fluid collection.
Exhibit '1b' : Very few clipping of nails described as nail scrappings.
Exhibit '1c' : Cotton wool swab on a stick labelled as In between fingers.
Exhibit '1d' : Empty envelope labelled as Debris Collection. Exhibit '1e' : Empty envelope labelled as Debris Collection.
33 of 58 34 FIR No. 295/13 PS - S.P. Badli Exhibit '1f' : Cotton wool swab on a stick labelled as Breast Swab.
Exhibit '1g' : Empty envelope labelled as 'combing of pubic hair.
Exhibit '1h' : Very few strands of hair labelled as clipping of Pubic hair.
Exhibit '1i' : Very few strands of hair labelled as 'Matted pubic hair.
Exhibit '1j' : Cotton wool swab on a stick kept in a test tube labelled as 'Cervical Mucus collection'. Exhibit '1k1', : Cotton wool swab on a stick kept in a test tube '1k2', '1k3' marked as exhibit '1k1' and Two microslides having faint whitish smear marked as exhibits '1k2', '1kj3' labelled as 'Vaginal Secretion'. Exhibit '1l' : Cotton wool swab on a stick kept in a test tube labelled as Culture.
Exhibit '1m' : Empty syringe labelled as Washing from vagina.
Exhibit '1n1', : Cotton wool swab on a stick kept in a test tube '1n2', '1n3' marked as exhibit '1n1' and Two microslides having faint whitish smear marked as exhibits '1n2, '1n3' labelled as 'Rectal Examination.' Exhibit '1o1', : Cotton wool swab on a stick marked as exhibit '1o2', '1o3' '1o1' and Two microslides having faint whitish smear marked as exhibits '1o2, '1o3' labelled as 'Oral Swab'.
Exhibit '1p1', : Dark brown foul smelling liquid kept in two '1p2', test tubes marked as exhibit '1p1' & '1p2' 34 of 58 35 FIR No. 295/13 PS - S.P. Badli labelled as blood collection of victim. Exhibit '1q1', : Dark brown foul smelling liquid kept in test '1q2' tube marked as exhibit '1q1' and straw coloured foul smelling liquid kept in container marked as exhibit '1q2' labelled as Urine and oxalate blood vial.
Exhibit '1r' : Plastic strip described as UPT kit.
Parcel '2' : One sealed cloth parcel sealed with the seal of "CASUALTY 01.07.12 GOVT OF DELHI, DR BSAH"
containing exhibits '2a', '2b', '2c', '2d', '2e', '2f1', '2f2' & '2g'. Exhibit '2a' : Few strands of hair labeled as cut pubic hair kept in test tube.
Exhibit '2b' : Few strands of hair labeled as plucked pubic hair kept in test tube.
Exhibit '2c' : Few strands of hair labeled as cut scalp hair kept in test tube.
Exhibit '2d' : Few strands of hair labeled as plucked scalp hair kept in test tube.
Exhibit '2e' : Dark brown foul smelling liquid labeled as Blood sample kept in test tube.
Exhibit '2f1', : Two microslides having faint whitish smear. '2f2' Exhibit '2g' : Gauze cloth piece having few brownish stains.
35 of 58 36 FIR No. 295/13 PS - S.P. Badli RESULT OF ANALYSIS
1. Blood was detected on exhibits '1j', '1k1', '1p1', '1q1', '2e' and '2g'.
2. Blood could not be detected on exhibits '1a', '1b', '1c', '1f', '1h', '1i', '1l', '1n1', '1o1', '1q2', '2a', '2b','2c' and '2d'.
3. Semen could not be detected on exhibits '1a', '1b', '1c', '1f', '1h', '1i', '1j', '1kl', '1k2', '1k3', '1l', '1n1', '1n2', '1n3', '1o1', '1o2', '1o3', '1q2', '1r', '2a', '2b', '2c', '2d', '2f1' and '2f2'.
4. Report of serological analysis in original is attached herewith. NOTE : Remnants of the exhibits have been sealed with the seal of 'S.G FSL DELHI'.
The serological report Ex. PW18/B reads as under: Exhibits Species of origin ABO Grouping/Remarks '1j' Cotton wool swab Human No Reaction** '1k1' Cotton wool swab Human No Reaction** '1p1' Blood sample No Reaction* '1p2' Blood sample No Reaction* '1q1' Blood sample No Reaction* '2e' Blood sample No Reaction* 36 of 58 37 FIR No. 295/13 PS - S.P. Badli '2g' gauze cloth piece Human 'B' Group *Origin of Species specific antigens degenerated. **Group specific antigens degenerated.
As per the biological report Ex. PW18/A, with regard to the description of the articles contained in the parcels, it is noticed that Parcel No. 1 belongs to the prosecutrix which was seized vide seizure memo Ex. PW3/A dated 20.06.2013 and Parcel No. 2 belongs to the accused Ajay which were seized vide seizure memo Ex. PW9/A dated 21.06.2013.
On careful perusal and analysis of the biological and serological evidence on record, it clearly shows that blood was detected on exhibit '1j' (Cervical Mucus collection of the prosecutrix); exhibit '1k1' (Vaginal Secretion of the prosecutrix); exhibit '1p1' (blood collection of the prosecutrix); exhibit '1q1' (Urine of the prosecutrix), exhibit '2e' (Blood sample of accused) and exhibit '2g' (Gauze cloth piece having brownish stains of accused); blood could not be detected on 37 of 58 38 FIR No. 295/13 PS - S.P. Badli exhibit '1a' (Body fluid collection of the prosecutrix); exhibit '1b' (nail scrappings of the prosecutrix); exhibit '1c' (In between fingers of the prosecutrix); exhibit '1f' (Breast swab of the prosecutrix); exhibit '1h' (clipping of Pubic hair of the prosecutrix); exhibit '1i' (Matted pubic hair of the prosecutrix); exhibit '1l' (Culture of the prosecutrix); exhibit '1n1' (Rectal Examination of the prosecutrix); exhibit '1o1' (Oral swab of the prosecutrix); exhibit '1q2' (Oxalate blood vial of the prosecutrix); exhibit '2a' (cut pubic hair of accused); exhibit '2b' (plucked pubic hair of accused); exhibit '2c' (cut scalp hair of accused) and exhibit '2c' (plucked scalp hair of accused); and semen could not be detected on exhibit '1a' (Body fluid collection of the prosecutrix); exhibit '1b' (nail scrapping of the prosecutrix); exhibit '1c' (In between fingers of the prosecutrix); exhibit '1f' (Breast Swab of the prosecutrix); exhibit '1h' (clipping of Pubic hair of the prosecutrix); exhibit '1i' (Matted pubic hair of the prosecutrix); exhibit '1j' (Cervical Mucus collection of the prosecutrix); exhibit '1k1' ( Cotton wool swab of the prosecutrix); exhibit '1k2' (Vaginal Secretion of the prosecutrix); exhibit '1k3' (Vaginal Secretion of the prosecutrix); exhibit '1l' (Culture of the prosecutrix); exhibit '1n1' (Cotton wool swab of the prosecutrix); exhibit '1n2' (Rectal 38 of 58 39 FIR No. 295/13 PS - S.P. Badli Examination of the prosecutrix); exhibit '1n3' (Rectal Examination of the prosecutrix); exhibit '1o1' (Cotton wool swab of the prosecutrix); exhibit '1o2' (Oral swab of the prosecutrix); exhibit '1o3' ( Oral swab of the prosecutrix); exhibit '1q2' (Oxalate blood vial of the prosecutrix); exhibit '1r' (UPT kit of the prosecutrix); exhibit '2a' (cut pubic hair of accused); exhibit '2b' (plucked pubic hair of accused); exhibit '2c' (cut scalp hair of accused); exhibit '2d' (plucked scalp hair of accused); exhibit '2f1' (faint whitish smear of accused); and exhibit '2f2' (faint whitish smear of accused). As per the serological report Ex. PW18/B, the opinion as 'Human' on the species of origin and as 'no reaction' on ABO Grouping/Remarks was given on exhibits '1j' & '1kl'. The opinion as 'No Reaction' on the species of origin and no opinion on ABO Grouping/Remarks was given on exhibits '1p1', '1p2' and '1q1'. The opinion as 'No Reaction' on the species of origin and no opinion on ABO Grouping/Remarks was given on exhibits '1q1' and '2e'. The opinion as 'Human' on the species of origin and as 'B' Group on ABO Grouping/Remarks was given on exhibit '2g'.
16. Now let the testimony of PW15 Prosecutrix be perused and 39 of 58 40 FIR No. 295/13 PS - S.P. Badli analysed.
PW15 Prosecutrix, in her examinationinchief has deposed which is reproduced and reads as under : "In the year 2013 I was working as Receptionist in Ishan Hospital, Sector18, Rohini, Delhi. Accused Ajay was also working as X Ray Technician in the said hospital. I can identify accused Ajay, if shown to me.
At this stage, the wooden partition has been removed. Accused Ajay is present in the court (correctly identified).
The wooden partition now has been restored to its original position.
Nothing had happened with me (merae saath aisa kuch nahi hoowa). On the intimidation of my friend Aarti, who was having enmity with accused Ajay and she had induced me, if I will not get register an FIR then I will be sent to jail and she had further told me that I am not having my mother and my father does not keep well and accused Ajay is having some video in which I am being shown/picturized and for this I will go to jail and thus on the inducement under the pressure of Aarti, I got registered the false case against accused Ajay, though nothing was committed upon me by accused Ajay. I know Aarti, who was working in the same hospital as sister/nurse and was knowing her during the course of my job at the said hospital. My statement was recorded U/s 40 of 58 41 FIR No. 295/13 PS - S.P. Badli 164 Cr.P.C before the Ld. MM and I had stated in the said statement as to the facts which were told to me by Aarti."
From the aforesaid narration of PW15 - prosecutrix, it is clear that in the year 2013 she was working as Receptionist in Ishan Hospital, Sector18, Rohini, Delhi. Accused Ajay was also working as X Ray Technician in the said hospital. She could identify accused Ajay, if shown to her. Nothing had happened with her (uske saath aisa kuch nahi hoowa). On the intimidation of her friend Aarti, who was having enmity with accused Ajay and she had induced her, if she would not get register an FIR then she would be sent to jail and she had further told her that she is not having her mother and her father does not keep well and accused Ajay is having some video in which she is being shown/ picturized and for this she would go to jail and thus on the inducement under the pressure of Aarti, she got registered the false case against accused Ajay, though nothing was committed upon her by accused Ajay. She know Aarti, who was working in the same hospital as sister/nurse and was knowing her during the course of her job at the said hospital. Her statement was recorded U/s 164 Cr.P.C before the Ld. MM and she had stated in the said statement as to the facts which were told to her by 41 of 58 42 FIR No. 295/13 PS - S.P. Badli Aarti.
PW15 - 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 had not told regarding the intimidation and pressure of Aarti to any superior official in the hospital where I was working. Vol. Aarti had come to my house early in the morning at about 6.30 AM and intimidated and pressurized me. I had not told to any of the police official in the police station regarding the intimidation and pressure of Aarti. Vol. I was too much intimidated by Aarti. It is wrong to suggest that I had not told to any official in the hospital or to any police official regarding intimidation and pressure of Aarti as no such intimidation or pressure was made or exhorted (exerted) by Aarti upon me. Aarti had joined the hospital subsequent to of my joining in the said hospital. Accused Ajay was working in the hospital prior to my joining the same. I do not know since when accused Ajay was working in the hospital. The relations between me and Aarti were of as a friend as developed during working in the same hospital. The relations between Aarti and accused Ajay as I perceived were of sister and brother. Vol. Aarti used to say that she is having brotherly relations with accused Ajay. One week prior to the registration of the case when I was on leave and I came to know that something had happened between Aarti and accused Ajay during the night duty in the hospital and Aarti had left talking with accused Ajay. I was on duty in the hospital, on the days prior to the 42 of 58 43 FIR No. 295/13 PS - S.P. Badli registration of this case on 20.06.2013.
Q. After seeing the behaviour of Aarti and accused Ajay that they are not on talking terms, did you ask Aarti regarding the same?
Ans. I did not ask Aarti for the same. Q. After seeing the behaviour of Aarti and accused Ajay that
they are not on talking terms, did you ask anyone else in the hospital regarding the same?
Ans. I did not ask anyone in the hospital regarding the same.
Aarti had told me that on her mobile phone an obscene video depicting me and accused Ajay has been forwarded. I had asked accused Ajay regarding the said obscene video. Vol. accused Ajay had told me that no such obscene video has been prepared nor he is having any such obscene video. Accused Ajay had not told me that such obscene video has been prepared in order to defame me. It is wrong to suggest that accused Ajay had told me that such obscene video has been prepared in order to defame me or that accused Ajay had threatened me, if I will disclose about the said video then he will kill me.
At this stage, the statement of the witness dated 20.06.2013 has been shown to the witness, who identifies her signature at PointA and deposed that such statement was made on the inducement, pressure and intimidation of Aarti and she did not make such statement of her own. The said statement is Ex. PW15/A. My father was accompanying me at the time when I had 43 of 58 44 FIR No. 295/13 PS - S.P. Badli gone to the PS for making the statement Ex. PW15/A. NGO member was also called in the PS at that time. My counseling was also done with the NGO before I made the statement. Aarti was present at the time of my counseling with the NGO. It is wrong to suggest that Aarti was not present at the time of my counseling with the NGO. I had not told to my father regarding the intimidation, pressure and inducement made to me by Aarti.
Q. What did you say to your father when you were going to the Police Station with Aarti?
Ans. I did not say anything to my father. I alongwith Aarti went to the Police Station. Vol. Later on, my father came to the Police Station.
It is wrong to suggest that I had informed my father about the committal of rape upon me by accused Ajay and thereupon, my father accompanied me to PS. It is correct that I made the statement Ex. PW15/A in the presence of my father.
I had not stated to the Police in my statement Ex. PW15/A that, 15 days prior to 20/06/2013, I went to the basement of the Hospital for taking register and then I saw that accused Ajay was standing near a room (Confronted with statement Ex. PW15/A where it is so recorded). It is wrong to suggest that 15 days prior to 20/06/2013, I went to the basement of the Hospital for taking register and then I saw that accused Ajay was standing near a room.
I had not stated to the Police in my statement Ex. PW15/A that, accused Ajay called me and made me to smell something through 44 of 58 45 FIR No. 295/13 PS - S.P. Badli his handkerchief and thereafter, I turned unconscious. (Confronted with statement Ex. PW15/A where it is so recorded). It is wrong to suggest that accused Ajay called me and made me to smell something through his handkerchief and thereafter, I turned unconscious.
I had not stated to the Police in my statement Ex. PW15/A that, when I regained consciousness, I saw that I was not wearing any clothes and rape was committed upon me. (Confronted with statement Ex. PW15/A where it is so recorded). It is wrong to suggest that when I regained consciousness, I saw that I was not wearing any clothes and rape was committed upon me.
At this stage, the statement Ex. PW15/A is read over to the witness to which she denies of having made any such statement to the police. Vol. this statement Ex. PW15/A was recorded by police on the dictation of Aarti. It is correct that police took me to BSA hospital for my medical examination. It is wrong to suggest that I had stated to the doctor that 15 days prior to that day (20.06.2013) I was sexually assaulted by the XRay Technician at Ishan Hospital, Sector19, Rohini, Delhi. Vol. Aarti was accompanying me and she had given the alleged history to the doctor in BSA hospital.
I had not stated to the Ld. MM about the pressure and instigation by Aarti to give statement. Vol. I had given the statement recorded U/s 164 Cr.P.C already Ex. PW13/B under the pressure of Aarti. It is wrong to suggest that the statement recorded U/s 164 Cr.P.C already Ex. PW13/B under the pressure of Aarti.
It is wrong to suggest that there was no pressure of Aarti 45 of 58 46 FIR No. 295/13 PS - S.P. Badli upon me at the time of making the statement U/s 164 Cr.P.C and for this reason I had not stated before Ld. MM about any such pressure. It is wrong to suggest that the statement recorded U/s 164 Cr.P.C Ex. PW13/B was given by me voluntarily.
Dr. Dinesh Bansal is the owner of Ishan Hospital. I had not informed Dr. Dinesh Bansal about the incident of the committal of rape upon me by accused Ajay.
At this stage, the statement dated 30.07.2013 recorded U/s 161 Cr.P.C Mark PW15/PX is read over to the witness, to which she denies of having made such statement to the police. It is wrong to suggest that my statement given to police dated 20.06.2013 Ex. PW15/A is my voluntarily statement or that it was made without under any pressure of Aarti. It is wrong to suggest that 10/15 days prior to 20.06.2013 accused Ajay administered some stupefying substance through handkerchief due to which I became unconscious and thereupon he had committed rape upon me or that thereafter, I reported the said incident to the police vide my statement Ex. PW15/A. It is wrong to suggest that I have concealed the true and actual facts or that deliberately I am making a false statement in order to save the accused. It is wrong to suggest that I am deposing falsely as matter has already been compromised between me and accused. It is wrong to suggest that I am deposing falsely. "
During her crossexamination by the Learned Counsel for the accused, PW15 - prosecutrix has deposed that : 46 of 58 47 FIR No. 295/13 PS - S.P. Badli "On 20.06.2013 I had come to Ishan hospital, place of my employment at about 8.00 AM. Vol. I had come with Aarti. On that day relatives of Aarti came to Ishan Hospital and gave beatings to accused Ajay and other staff of the hospital. It is correct that accused Ajay had sustained injuries at that time due to the beatings given by the relatives of the Aarti. It is correct that no crime has been committed with me by accused Ajay. "
On analysing the entire testimony of PW15 - prosecutrix it is clearly indicated that during her examinationinchief she has specifically deposed that, "Nothing had happened with me (maerae saath asai kuch nahi hoowa). On the intimidation of my friend Aarti, who was having enmity with accused Ajay and she had induced me, if I will not get register an FIR then I will be sent to jail and she had further told me that I am not having my mother and my father does not keep well and accused Ajay is having some video in which I am being shown/picturized and for this I will go to jail and thus on the inducement under the pressure of Aarti, I got registered the false case against accused Ajay, though nothing was committed upon me by accused Ajay." She did not support the prosecution in her statement recorded u/s 164 Cr.P.C Ex.
47 of 58 48 FIR No. 295/13 PS - S.P. Badli PW13/B when she deposed during her examinationinchief that she had stated in the statement u/s 164 Cr.P.C as to the facts which were told to her by Aarti and has voluntarily deposed during her crossexamination by the Learned Addl. PP for the State that she had given the statement recorded u/s 164 Cr.P.C already Ex. PW13/B under the pressure of Aarti. During her crossexamination by Learned Addl. PP for the State she negated the suggestions put to her by the Learned Addl. PP for the State that she had not told to any official in the hospital or to any police official regarding intimidation and pressure of Aarti as no such intimidation or pressure was made or exhorted (exerted) by Aarti upon her or that accused Ajay had told her that such obscene video had been prepared in order to defame her or that accused Ajay had threatened her, if she will disclose about the said video then he will kill her or that Aarti was not present at the time of her counseling with the NGO or that she had informed her father about the committal of rape upon her by accused Ajay and thereupon, her father accompanied her to PS or that 15 days prior to 20/06/2013, she went to the basement of the Hospital for taking register and then she saw that accused Ajay was standing near a room or that accused Ajay called her and made her to smell something 48 of 58 49 FIR No. 295/13 PS - S.P. Badli through his handkerchief and thereafter, she turned unconscious or that when she regained consciousness, she saw that she was not wearing any clothes and rape was committed upon her or that she had stated to the doctor that 15 days prior to that day (20.06.2013) she was sexually assaulted by the XRay Technician at Ishan Hospital, Sector19, Rohini, Delhi. Vol. Aarti was accompanying her and she had given the alleged history to the doctor in BSA hospital or that the statement recorded U/s 164 Cr.P.C already Ex. PW13/B (was not given) under the pressure of Aarti or that there was no pressure of Aarti upon her at the time of making the statement U/s 164 Cr.P.C and for this reason she had not stated before Ld. MM about any such pressure or that the statement recorded U/s 164 Cr.P.C Ex. PW13/B was given by her voluntarily or that her statement given to police dated 20.06.2013 Ex. PW15/A is her voluntarily statement or that it was made without under any pressure of Aarti or that 10/15 days prior to 20.06.2013 accused Ajay administered some stupefying substance through handkerchief due to which she became unconscious and thereupon he had committed rape upon her or that thereafter, she reported the said incident to the police vide her statement Ex. PW15/A or that she has concealed the true and actual 49 of 58 50 FIR No. 295/13 PS - S.P. Badli facts or that deliberately she is making a false statement in order to save the accused or that she is deposing falsely as matter has already been compromised between her and accused or that she is deposing falsely.
As discussed hereinbefore, PW15 - prosecutrix has been found to be aged around 26 years, from the testimony of PW 15 - prosecutrix, nothing is being indicated that about 1015 days prior to 20.06.2013 at the Basement of Ishaan Hospital, 8B Pocket1, Sector19, Rohini, accused Ajay administered some intoxicant/stupefying substance to PW15 - Prosecutrix with intent to commit rape upon her or that thereafter he committed rape upon her against her will and without her consent or that at the time of committing rape he (accused Ajay) prepared video movie with the help of his mobile phone which he circulated/public transmitted on the mobile phones of one Aarti and other staff members of the hospital or that he also criminally intimidated the prosecutrix by threatening her to kill. Even the FSL Reports Ex. PW18/A & Ex. PW18/B as reproduced, discussed and analysed herein before also do not come to the rescue of the prosecution case.
50 of 58 51 FIR No. 295/13 PS - S.P. Badli Now, let the testimony of PW - 17 Aarti, friend of the prosecutrix be perused and analysed.
PW17 - Aarti is the friend of the prosecutrix, who in her examinationinchief has deposed that : "In the year 2013 I was working as Staff Nurse in Ishan Hospital, Sector19, Jail Road, Rohini, Delhi. The prosecutrix (name withheld) used to work as Receptionist in Ishan Hospital during that period. I know accused Ajay present in the court (correctly identified) as he used to work in XRay Deptt. in Ishan Hospital at that time. Accused Ajay had picturised/prepared one video of prosecutrix (name withheld) and that video was prepared in the room of Dr. Dinesh Bansal, situated in the basement of the hospital. The video was seen by me as it was transmitted by accused on my mobile phone and the same was found to be obscene depicting accused Ajay removing the clothes of prosecutrix (name withheld) and was kissing. On which I made enquiry from prosecutrix (name withheld) and she told me that accused Ajay had made her to eat something and thereafter, he did 'jabardasti' upon her. The said video had been transmitted to all the staff members on their mobile phones by accused Ajay. After sometime I was on night duty, Vishnu, PRO, who was posted in the hospital, he did the same misconduct with me (usne bhi merai saath wahi baadtamiji kari). Thereafter, both accused Ajay and Vishnu threatened me, the way they have prepared the video of prosecutrix (name withheld) in the same 51 of 58 52 FIR No. 295/13 PS - S.P. Badli manner after preparing my video they will transmit the same in the market. Thereafter, I made a complaint to my Director Dr. Dinesh Bansal and also told to my staff members. Director Dr. Dinesh Bansal told us [me and prosecutrix (name withheld)] "if they have (Ajay and Vishnu) done so it is better you both leave the job and he will not get both of them (Vishnu and Ajay) out of job." Thereafter, I resigned from the Ishan Hospital. On being questioned by my elder brother as to why I am not going to the job, thereupon, after putting me under 'oath' (kasam dilakar), I disclosed all about the incident to him. I alongwith prosecutrix (name withheld) went to PS S.P. Badli and got lodged our complaints. My mobile phone Make Samsung Glaxay was also seized by the police vide seizure memo Ex. PW17/A bearing my signature at PointA. I can identify my mobile phone, if shown to me.
At this stage, the MHC(M) has produced the mobile phone Marked as MP2 containing one memory card Marked as MC2 (already Ex. P6 & Ex. P7 respectively), same are shown to the witness, who identifies her mobile phone containing the memory card. "
PW17 Aarti during her crossexamined by the Learned Counsel for accused has deposed that : "It is wrong to suggest that after compelling Prosecutrix (name withheld), I took her to the police station on 20.06.2013 for lodging the report. It is wrong to suggest that because of enemity with
52 of 58 53 FIR No. 295/13 PS - S.P. Badli accused Ajay, I had compelled prosecutrix (name withheld) to lodge police complaint against him. It is wrong to suggest that I am deposing deposing falsely."
On careful perusal and analysis of the testimony of PW17 - Aarti, friend 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. Moreover her testimony does not find corroboration from the testimony of PW15 - Prosecutrix. She has negated the suggestions, as were put to her by the Learned Counsel that after compelling Prosecutrix (name withheld), she took her to the police station on 20.06.2013 for lodging the report or that because of enmity with accused Ajay, she had compelled prosecutrix (name withheld) to lodge police complaint against him or that she is deposing deposing falsely.
PW21 - Ramesh Malhotra is the father of the prosecutrix, who in his examinationinchief has deposed that : "One day in the year, 2013 (day and month I do not 53 of 58 54 FIR No. 295/13 PS - S.P. Badli remember) Aarti who was working in the same hospital where my daughter/prosecutrix (name withheld) was working came to our house at 6.30 AM. Aarti was working as Nurse in Ishan Hospital and my daughter was working there as Receptionist. She asked my daughter to accompany her and my daughter went with her. After sometime I also followed my daughter and reached in the hospital. I saw that the brother of Aarti was beating accused Ajay in one room. I enquired from Aarti as to why she was beating accused Ajay, who is present in the court today (correctly identified). Aarti told me that Ajay had committed 'wrong act' with my daughter and I should not speak as she was our wellwisher. Aarti and her brother dialed at no. 100. PCR came and took us to PS S.P. Badli. Statement was recorded on the dictation of Aarti by some lady police official. I do not know what was recorded in that statement. I was asked to sit on one side as it was the matter involving the ladies and therefore, statement could not be recorded in my presence."
PW21 - Ramesh Malhotra was also crossexamined by the Learned Addl. PP for the State as he was resiling from her previous statement which is reproduced and reads as under : "I did not give any statement to the police. Aarti may have come to our house on 20.06.2013 at 7.00 AM. I did not state to the police that my daughter/prosecutrix (name withheld) called me in the hospital and narrated everything to me. (Confronted with the statement Ex. PW20/A, where it is so recorded). It is wrong to suggest that I 54 of 58 55 FIR No. 295/13 PS - S.P. Badli gave any statement to the police. Aarti may have come to our house on 20.06.2013 at 7.00 AM. It is wrong to suggest that my daughter/prosecutrix (name withheld) called me in the hospital and narrated everything to me.
It is incorrect to suggest that the brother of Aarti was not beating accused in the hospital. It is wrong to suggest that I have won over by the accused, therefore, I am deposing in favour of the accused."
PW21 - Ramesh Malhotra was not crossexamined on behalf of accused despite grant of opportunity.
On careful perusal and analysis of the testimony of PW21 - Ramesh Malhotra, father 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. Moreover his testimony does not find corroboration from the testimony of PW15 - Prosecutrix. He has negated the suggestions, as were put to him by the Learned Addl. PP, that he gave any statement to the police or that his daughter/prosecutrix (name withheld) called him in the hospital and narrated everything to him or that the brother of Aarti was not beating accused in the hospital or that he has won over by the accused, therefore, 55 of 58 56 FIR No. 295/13 PS - S.P. Badli he is deposing in favour of the accused.
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 Ajay. The hostility of PW15 - prosecutrix and that of PW 21 - Ramesh Malhotra, her father has knocked out the bottom of the case of the prosecution. There is nothing on record to indicate that about 1015 days prior to 20.06.2013 at the Basement of Ishaan Hospital, 8B Pocket1, Sector19, Rohini, accused Ajay administered some intoxicant/stupefying substance to PW15 - Prosecutrix aged around 26 years with intent to commit rape upon her or that thereafter he committed rape upon her against her will and without her consent or that at the time of committing rape he (accused Ajay) prepared video movie with the help of his mobile phone which he circulated/public transmitted on the mobile phones of one Aarti and other staff members of the hospital or that he also criminally intimidated the prosecutrix by threatening her to kill.
I accordingly, acquit accused Ajay for the offences 56 of 58 57 FIR No. 295/13 PS - S.P. Badli punishable u/s 376/506/328 IPC& u/s 66E, 67A IT Act.
18. In view of above discussion, I am of the considered opinion that as far as the involvement of accused Ajay in the commission of offences punishable u/s 376/506/328 IPC& u/s 66E, 67A IT Act, 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 Ajay beyond shadows of all reasonable doubts and there is a room for hypothesis, consistent with that of innocence of accused Ajay. I, therefore, acquit accused Ajay for the offences punishable u/s 376/506/328 IPC& u/s 66E, 67A IT Act after giving him the benefit of doubt. Accused Ajay is on bail. However, u/s 437A Cr.P.C. the bail bond of accused Ajay 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 16th Day of December, 2015 Additional Sessions Judge Special Fast Track Court 57 of 58 58 FIR No. 295/13 PS - S.P. Badli (North District), Rohini, Delhi 58 of 58