Delhi District Court
State vs . Rambir on 28 May, 2014
1
FIR No. 310/11
PS - Alipur
IN THE COURT OF SH. MAHESH CHANDER GUPTA :
ADDITIONAL SESSIONS JUDGE : SPECIAL FAST TRACK
COURT : NORTHWEST DISTRICT : ROHINI : DELHI
SESSIONS CASE NO. : 170/13
Unique ID No. : 02404R0337632011
State Vs. Rambir
S/o Partap Singh
R/o H. No. 127,
V&PO - Sultan Pur Dabas,
Delhi - 110036.
FIR No. : 310/11
Police Station : Alipur
Under Sections : 376/365/328 IPC
Date of committal to session Court : 04/02/2012
Date on which judgment reserved : 17/05/2014
Date on which judgment announced : 28/05/2014
J U D G M E N T
1. Briefly stated the case of the prosecution as unfolded by the report under section 173 Cr.P.C. is as under : 1 of 59 2 FIR No. 310/11 PS - Alipur That on 07/09/2011, on receipt of information vide DD no. 28A regarding commission of rape with the caller in Room No. 220 at Splash, SI Dinesh Kumar with SI Satbir reached at the spot where prosecutrix (name withheld being a case u/s 376 IPC) and accused Rambir were present. After sometime, W/SI Santosh with a W/Constable Satyawati also reached there. SI Dinesh Kumar in the presence of W/SI Santosh recorded the statement of the prosecutrix (name withheld) w/o Sri Bhagwan R/o House No. 97, Second Floor, Pocket 22, Sector 24, Rohini, which is to the effect that, she resides at the above address and works in Sahara India Company. About 1½ months ago, she was standing at the Rithala Metro Station and was holding a file of Sahara Company in her hand. Rambir S/o Pratap R/o House No. 127, Sultan Pur Dabas asked her whether she works in Sahara India to which she said in the affirmative that she is an agent in Sahara Company and then he started asking about the functioning of her duty to which she told that she does the work of fixed deposit (FD). He asked her for her phone number saying that he will also get done a few FDs, on which she gave her phone number to him (To Usne Yeh Kehte Huye Mere Se Apni Phone Number Manga Ki Main Kai F.D. Karaunga Va Aap 2 of 59 3 FIR No. 310/11 PS - Alipur Apna Phone De Do, To Maine Apna Phone Number Usko De Diya). Today (07/09/2011) morning, she received a telephone call from Rambir asking her to come as he and his friends have to get done a few FDs, on which she came at Sector 24 Rohini bus stand. Rambir by making her sit on his motorcycle brought her to Retreat Motel at Alipur and started saying that here, his few friends will come who have to get done FDs. He started saying let they eat and drink something (Kuch Kha Pee Lete Hain), he got booked one room (Usne Ek Kamra Book Karaya), she asked him as to what is the need of a room, let they eat by sitting here (Yahin Beth Kar Kha Lete Hain). But he did not agree (Weh Nahi Mana) and he took her in the room and she asked him where his friends are on which he told that they are coming and when she started leaving then he said they (his friends) will come soon and till then let they have cold drink and he called for the cold drink and then, she went into the washroom and when she came back Rambir had already put the cold drink in the glasses and after lifting one glass, he gave it to her and she drank the cold drink of that glass from which she started having little little intoxication (Halka Halka Nasha Hone Laga) and Rambir started molesting her (Chhedkhani Shuru Kar Di) of which she protested but 3 of 59 4 FIR No. 310/11 PS - Alipur due to being under intoxication, she could not apply much force (Jiska Maine Virodh Kiya Parantu Naashe Ke Karan Mai Bahut Jada Bal Nahi Laga Pai). He removed her clothes and during that time, she was having little little of consciousness (Halka Halka Hosh Tha), and he penetrated his urinating organ into her place of urination and slowly slowly she became unconscious. After sometime, when she regained consciousness, she informed the Police at number 100 on which Police came at the spot and recorded her statement. Rambir has committed rape upon her. Legal action be taken against him. On finding that offences u/s 328/376 IPC appeared to have been committed, the case was got registered and further investigation was taken up by W/SI Santosh. During the course of the investigation, the exhibits, like used condom, unused condom, condom cover, bed sheet, pillow glasses, etc. were taken into possession. Client entry register in which at Srl. No. 13385 entry of both the persons regarding their presence in Room No. 220 was shown, was also taken into Police possession. Crime team was also called at the spot and the Crime Team's report was obtained. Prosecutrix and accused were got medically examined from SRHC Hospital and the sealed exhibits handed over by the Doctors after their medical examinations 4 of 59 5 FIR No. 310/11 PS - Alipur were taken into Police possession and were deposited in the malkhana. Statement of the prosecutrix u/s 164 Cr.P.C. was also got recorded. Three chanceprints were also found on the glasses. Finger prints of the accused was obtained after taking Court permission. Finger prints of the prosecutrix were also taken. Finger prints of the accused and of the prosecutrix were sent to Finger Print Bureau for comparison. The sealed exhibits were sent to the FSL.
Upon completion of the necessary further investigation challan for the offences u/s 376/328/365 IPC was prepared against accused Rambir and was sent to the Court for trial.
2. Since the offences 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 328/365/376 IPC 5 of 59 6 FIR No. 310/11 PS - Alipur was made out against accused Rambir. 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 16 witnesses. PW1 HC Sanjay Tyagi, PW2 - Constable Manish, PW3 Constable Deepak, PW4 Retired SI Prem Singh, PW5 Anuradha, Nav Sristri NGO, PW6 - Dilbagh Singh, Franchise Head in Sahara Cooperative Society S/o Late Shri Kanwar Lal R/o House No. 757, Madanpur Road, Karala, Delhi 110081, PW7 Prosecutrix, PW8 HC Devender Singh, PW9 Dr. Hema Mahawan, Specialist Incharge (Gynae) SRHC Hospital, Narela, Delhi, PW10 - Constable Mritunjay, PW11 Constable Satyavir, PW12 Sh. Anil Bhardwaj, Manager Retreat Motel Alipur, Delhi, PW13 - Constable Manish, PW14 - Sh. Vishal Singh, Civil Judge, Tis Hazari Courts, Delhi, PW15 - SI Dinesh Dahiya and PW16 - W/SI Santosh Kumari.
5. In brief the witnessography of the prosecution witnesses is as under : 6 of 59 7 FIR No. 310/11 PS - Alipur PW1 HC Sanjay Tyagi who deposed that on 07/09/2011 he was posted at PS Alipur and was working as Duty Officer from 2:30 p.m. to 12:00 midnight. He was to take over as Duty Officer from 04:00 p.m. but since earlier Duty Officer W/HC Raj Rani became ill all of a sudden, he took over duties from her from 2:30 p.m. itself. On that day at about 3:00 p.m., Constable Satbir brought a rukka sent by SI Dinesh and handed over the same to him. On the basis of that rukka, he got recorded the FIR no. 310/11 u/s 376/328 IPC on computer through Computer Operator. After registration of the case, he handed over the copy of FIR and original rukka to Constable Satbir for handing over the same to SI Dinesh for further investigation. He has brought the original FIR with him and the computer generated copy of FIR is Ex. PW1/A which bears his signatures at point 'A' (original seen and returned). He made his endorsement on the rukka at point 'A' which is Ex. PW1/B and the same is in his hand, having his signature at point 'A'.
PW2 - Constable Manish who deposed that on 07/09/2011 he was posted at Mobile Crime Team, Outer District as photographer. On that day, on receipt of call from Control Room, he alongwith I/C SI 7 of 59 8 FIR No. 310/11 PS - Alipur Prem Singh and other members of Crime Team reached at Room No. 220, Retreat Motel, Splash Water Park, Alipur, Delhi. There he took 21 photographs of the place of occurrence from different angles, in the presence of accused, victim, IO and other Police staff. He has brought the 21 negatives with him. (At this stage, it is seen, out of 21 negatives, two are blank. Further, it is seen from record that only 12 photographs have been placed with the chargesheet by the IO). The twelve positive photographs of the negatives are placed on the file and the remaining seven photographs are not available at the spot, as the same are the repeated photographs. The negatives are Ex. PW2/A1 to Ex. PW2/A21 and 12 photographs are Ex. PW2/B1 to Ex. PW2/B1.
PW3 Constable Deepak who deposed that on 07/09/2011, he was posted at Mobile Crime Team, Outer Distt. as Finger Print Proficient. On that day, on receipt of call from Control Room, he alongwith I/C SI Prem Singh and other members of Crime Team reached at Room No. 220, Retreat Motel, Splash Water Park, Delhi. After the photographer of the Crime Team took photographs, he (PW3) lifted three chance prints from the glass kept on the table in the room. The said 8 of 59 9 FIR No. 310/11 PS - Alipur prints were deposited by him in Finger Print Bureau with the directions to IO to collect the result.
PW4 Retired SI Prem Singh R/o D36, Lord Krishna Road, Adarsh Nagar, Delhi who deposed that on 07/09/2011, he was posted as Incharge Mobile Crime Team, Outer District and on that day, on receipt of call from Control Room, he alongwith his staff reached at Room No. 220, Retreat Motel, Splash Water Park, Alipur, Delhi at about 3:00 p.m. Staff from the PS, one victim and accused were also present there. He inspected the scene of crime. There was one double bed lying on which there were semen stains at three places on the bed sheet and there were two used condoms lying on the right side of the bed, towards head side. One unused condom was lying on the TV trolley and one wrapper of the condom was lying on the floor. There were five glasses, two water bottles, one empty one filled, two cocacola bottle (glass) and a plate lying on the centre table. Glasses were checked by the finger print proficient, who lifted three chance prints from them. Photographs of the scene of crime were got taken by the Crime Team photographer. Thereafter, he prepared his detailed report which is Ex. PW4/A bearing 9 of 59 10 FIR No. 310/11 PS - Alipur his signatures at point 'A' and handed it over to the IO. The writing work was done by Constable Deepak, member of the Crime Team at his instance.
PW5 Anuradha, Nav Sristri NGO, who deposed that she is working as a Counselor in the above mentioned NGO. On 07/09/2011, on receipt of a call from PS Alipur, she reached at PS - Alipur, where she found prosecutrix sitting there. On inquiry, prosecutrix told her the manner in which accused had committed rape upon her. The prosecutrix had already been medically examined. She (PW5) counseled the prosecutrix and returned back.
PW6 - Dilbagh Singh S/o Late Shri Kanwar Lal R/o House No. 757, Madanpur Road, Karala, Delhi 110081 who deposed that he is the Franchise Head in Sahara Cooperative Society Ltd. and his Office is at the above mentioned address. His company is having various deposit schemes i.e. daily deposits, monthly deposits and fixed deposits. There are about 350 people working under him. The prosecutrix was also their employee. He does not remember the date, month or year, but a Police 10 of 59 11 FIR No. 310/11 PS - Alipur officer met him in connection with the present case and inquired from him, if the prosecutrix was working in their office and also showed him her original ICard. He affirmed that prosecutrix was working in their office and admitted his signatures on the ICard of the prosecutrix. The Icard is Ex. PW6/A which bears his signatures at points 'A' and 'B' respectively.
PW7 - Prosecutrix is the victim, who deposed regarding the incident and proved her complaint made to the Police Ex. PW7/A which bears her signature at point 'A' and proved her statement recorded u/s 164 Cr.P.C. Ex. PW7/B which bears her signature at point 'A' and proved the seizure memo of her original ICard Ex. PW7/C which bears her signature at point 'A', her identity card is Ex. PW6/A and identified and proved her clothes, one underwear and one bra Ex. P1 (colly.), one salwar, one lady shirt and one chunni Ex. P2 (colly.). Since she resiled from her earlier statement she was also crossexamined by Learned Addl. PP for the State. Her reexamination/crossexamination was also conducted by Learned Addl. PP for the State after her crossexamination by Learned Counsel for the accused.
11 of 59 12 FIR No. 310/11 PS - Alipur PW8 HC Devender Singh who deposed that on 07/09/2011, he was working as MHC(M) at PS - Alipur. On that day, W/SI Santosh handed over eleven pullindas, out of which four pullindas sealed with the seal of SRHC Hospital, Narela, and two sample seals and seven pullindas sealed with the seal of 'DK' and one motorcycle bearing registration No. DL11SA8352, to him. He made entry in Register No. 19 at Serial No.
395. Photocopy of the same is Ex. PW8/A (OSR). On 23/11/2011, on the instructions of IO, he handed over six pullindas, out of which four pullindas sealed with the seal of SRHC Hospital and sample seals and two pullindas sealed with the seal of 'DK' to Constable Manish vide RC No. 118/21/11 and he made entry in Register No. 19 from portion 'A' to 'A1' on Ex. PW8/A. After depositing pullindas at FSL,Constable Manish handed over the receipt on RC and acknowledgment slip to him and the same were placed by him in RC Book. He has brought the original RC Book with acknowledgment clip. Photocopy of the receipt of RC and acknowledgment slip are Ex. PW8/B and Ex. PW8/C respectively (OSR). Nobody including him tampered with the case property, till the same remained in his possession.
12 of 59 13 FIR No. 310/11 PS - Alipur PW9 Dr. Hema Mahawan, Specialist Incharge (Gynae) SRHC Hospital, Narela, Delhi, who deposed that she has been deputed by MS, SRHC Hospital in place of Dr. Sapna to depose on her behalf. On 07/09/2011, Dr. Sapna was working as SR, Gynae in the aforesaid Hospital. On that day, prosecutrix was brought by Police officials for examination at about 4:00 p.m. The patient gave history of sexual assault. On gynaecological examination Dr. Sapna made observations at point encircled 'A' on MLC Ex. PW9/A. After detailed examination, samples as collected in forensic kit and handed over to IO by Dr. Sapna. She can identify handwriting and signatures of Dr. Sapna as she was working under her (PW9) in the same department of the Hospital.
PW10 - Constable Mritunjay, who deposed that on 07/09/2011, he was posted as Constable Computer Operator in PS Alipur. On that day, Duty Officer HC Sanjay Tyagi handed over to him a rukka at about 8:00 p.m. for typing the FIR in computer. On the basis of rukka which was sent by SI Dinesh, he typed the FIR No. 310/11, u/s 376/328 IPC in the computer. Thereafter, he handed over copies of FIR 13 of 59 14 FIR No. 310/11 PS - Alipur to the Duty Officer. The copy of the FIR is already exhibited as Ex. PW1/A. PW11 Constable Satyavir, who deposed that on 07/09/2011, he was posted as Constable in PS - Alipur. On that day, he alongwith SI Dinesh reached at Retreat Room No. 220 where they met complainant (name withheld). One Rambir was also present there. SI Dinesh made inquiries from prosecutrix (name withheld) and thereafter W/Constable Satyawati alongwith SI Santosh reached there. Prosecutrix (name withheld) told that rape has been committed upon her by Rambir after giving cold drink to her. Rambir was apprehended. SI Dinesh recorded the statement of prosecutrix (name withheld) and prepared Tehrir. They went inside the room, one condom cover of blue colour was lying near the bed in the room, one condom cover was lying on the T. V. Trolly. One unused condom was also lying there and two used condom were lying towards the pillow side of the bed. Cold Drink bottle of CocaCola, water bottle, five glasses and plates were also lying there. SI Dinesh handed over to him a Tehrir for getting the FIR registered. He got the FIR registered in the Police Station and came back at the spot and 14 of 59 15 FIR No. 310/11 PS - Alipur handed over the copy of FIR and original rukka to SI Dinesh. Bed Sheet and pillow cover were put up into a pullinda and seized vide memo Ex. PW11/A, the cold drink bottles were also put up into a pullinda and sealed with the seal of 'DK' and seized vide memo Ex. PW11/B, bearing his signature at point 'A'. Five glasses were also put into a pullinda and sealed with the seal of 'DK', seized vide memo Ex. PW11/C, bearing his signature at point 'A'. Condom Cover and Condom were also put up into pullinda and sealed with the seal of 'DK' and seized vide memo Ex. PW11/D, bearing his signature at point 'A', used condom were put up into a pullinda and sealed with the seal of 'DK' and seized vide memo Ex. PW11/E, bearing his signature at point 'A', water bottle were also put up in a pullinda and sealed with the seal of 'DK' and seized vide memo Ex. PW11/F, bearing his signature at point 'A'. Entry Record Register/Retreat Motel and photocopy of the relevant page were also seized vide memo Ex. PW11/G, bearing his signature at point 'A'. Accused Rambir was interrogated and arrested vide arrest memo Ex. PW11/H, his personal search was conducted vide memo Ex. PW11/J, bearing his signature at point 'A'. The Manager of the Retreat Motel also produced the photocopy of Driving License of Rambir and the same was 15 of 59 16 FIR No. 310/11 PS - Alipur seized vide memo Ex. PW11/K, bearing his signature at point 'A'. Crime Team also inspected the spot, accused Rambir was taken to SRHC Hospital and where he was medically examined. After medical examination, Doctor handed over the pullinda containing the exhibits and the same was seized vide memo Ex. PW11/L, bearing his signature at point 'A'. Prosecutrix was also medically examined and after medical examination, Doctor handed over the pullinda containing the exhibits, same was seized vide memo Ex. PW11/M, bearing his signatures at point 'A'. During the search of Rambir, his driving licence was found and the same was seized vide memo Ex. PW11/N, bearing his signature at point 'A'. One motorcycle No. DL11SA8352 was also seized from the parking of the Retreat Motel Ex. PW11/O, bearing his signature at point 'A'. Accused Rambir is present in the Court. He also identified two white pillow covers collectively exhibited as Ex. P3, one white bed sheet Ex. P4, two cold drink bottles of CocaCola of 300 ml Ex. P5, five glasses out of which two are found broken Ex. P6, two condom cover of Durex and one unused condom Ex. P7, two used condoms collectively exhibited as Ex. P8, two water bottles of Aqua Fina collectively exhibited as Ex. P9, a register containing entry at Serial No. 13385 dated 16 of 59 17 FIR No. 310/11 PS - Alipur 07/09/2011 in the name of Rambir Singh S/o Pratap Singh and prosecutrix (name withheld) of Room No. 220 which was handed over by the Manager of Retreat Motel, the Register is Ex. P10 and the photocopy of the corresponding page is Ex. P11. The photocopy of the Driving License of Rambir Singh produced by Manager of Retreat Motel is Ex. P12. He can also identify the original D/L of the accused which was recovered during the personal search of the accused and the motorcycle no. DL11SA8352 which was seized from the parking (The driving License was taken by the accused on Superdari and the motorcycle was taken on Superdari by the father of the accused and same are not disputed).
PW12 Sh. Anil Bhardwaj, is the Manager Retreat Motel, Alipur, Delhi who deposed that he is working as Manager in Retreat Motel in Alipur. On 07/09/2011 at about 10:00/10:15 a.m., one Rambir came in their hotel alongwith one lady and Rambir told that other lady is his wife. He took one room in their hotel and he allotted Room No. 220 to him. On their asking, he handed over one I. D. Proof i.e. copy of the driving license. He (PW12) made entry at Serial No. 13385 of their 17 of 59 18 FIR No. 310/11 PS - Alipur Register. Thereafter, accused Rambir and prosecutrix (name withheld) went inside the room after about 1½ - 2 hours, Police came there and he came to know about the present incident. He took the Police at Room No. 220 where prosecutrix (name withheld) was weeping. He handed over to the Police their register and photocopy of the corresponding page, which was seized by the Police vide memo Ex. PW11/G, the Register is exhibited as Ex. P10 and the photocopy of the corresponding page is Ex. P11. He also handed over the Police the photocopy of the driving license which was given by accused Rambir as I. D. Proof and the same was seized vide memo Ex. PW11/K and the photocopy of the same is already exhibited as Ex. PW12 (Be read as P12). Accused Rambir is present in the Court. On a leading question put by Learned Addl. PP for the State regarding disclosure of relationship between them by whom, PW12 - Sh. Anil Bhardwaj replied that Rambir had only told about the relationship as of husband and wife.
PW13 - Constable Manish who deposed that on 23/11/2011, he was posted as Constable at PS - Alipur. On that day, on the instructions of IO, he took six pullindas from MHC(M) for depositing in 18 of 59 19 FIR No. 310/11 PS - Alipur FSL, Rohini vide RC No. 118/21/11 and deposited the same in the FSL, Rohini. Thereafter, he deposited the acknowledgment receipt with the MHC(M). So long as pullindas remained in his custody, the same were not tampered with.
PW14 - Sh. Vishal Singh, Civil Judge, Tis Hazari Courts, Delhi who deposed that on 08/09/2011, he was posted as MM at Rohini Courts. On that day, an application filed by W/SI Santosh for recording the statement u/s 164 Cr.P.C. was marked to him by Learned ACMM, Sh. Manish Gupta. The application is Ex. PW14/A. He recorded the statement of witness/prosecutrix (name withheld) on Oath u/s 164 Cr.P.C. in the Court Chamber attached to his Court. The witness reaffirmed the statement/complaint given by her to the Police. The proceedings is Ex. PW14/B (running into three pages) bearing his signatures at points 'A1' to 'D1'. Upon completion of the statement, the IO W/SI Santosh applied for the copy of the same, the application is Ex. PW14/C. The application was allowed and bears his signatures at point 'X'. Thereafter, the entire proceedings was kept in a sealed pullinda, sealed with the Court seal and was sent to the concerned Court.
19 of 59 20 FIR No. 310/11 PS - Alipur PW15 - SI Dinesh Dahiya is the initial Investigating Officer (IO), who deposed that on 07/09/2011, he was posted as SubInspector in PSAlipur. On that day, he received DD No. 28A, the copy of which is Ex. PW15/A and thereafter, he alongwith Constable Satbir reached at the spot i.e. Room No. 220, Retreat Splash Water Park, Alipur, Delhi and where they found complainant (name withheld) and accused Rambir. In the meantime, W/SI Santosh alongwith Constable Satyawati also reached there. SHO also reached at the spot. He (PW15) made inquiries from the complainant (name withheld) in the presence of SI Santosh. He recorded statement of prosecutrix (name withheld) which is Ex. PW7/A, bearing her signature at point 'A' and he attested her signature, bearing her signature at point 'B'. He prepared rukka Ex. PW15/A, bearing her signature at point 'A'. The rukka was handed over to Constable Satbir for getting the FIR registered and the further investigation was handed over to W/SI Santosh. Crime Team was called at the spot and Crime Team inspected the spot and report of the Crime Team was handed over to IO. IO W/SI Santosh prepared the Site Plan at the instance of the complainant which is Ex. PW15/B, bearing his signature at point 'A'.
20 of 59 21 FIR No. 310/11 PS - Alipur Constable Satbir came back at the spot after registration of case and handed over the copy of FIR and original rukka to IO. IO lifted white colour bed sheet and pillow cover from the spot and the same was put up into pullinda and sealed with the seal of 'DK' and seized vide memo Ex. PW11/A, bearing his signature at point 'B'. Two coca cola cold drink empty bottles were also lifted from the spot and same were put up into pullinda and sealed with the seal of 'DK' and seized vide memo Ex. PW11/B, bearing his signature at point 'B'. Five glasses were also lifted from the spot and same were put up into pullinda and sealed with the seal of 'DK' and seized vide memo Ex. PW11/C, bearing his signature at point 'B'. Two condom covers of Durex and one unused condom were also lifted from the spot and same were put up into pullinda and sealed with the seal of 'DK' and seized vide memo Ex. PW11/D, bearing his signature at point 'B'. Two used condoms were also lifted from the spot and gauze piece prepared from the condom, the same were put up into pullinda and sealed with the seal of 'DK' and seized vide memo Ex. PW11/E, bearing his signature at point 'B'. Two water bottles were also lifted from the spot and same were put up into pullinda and sealed with the seal of 'DK' and seized vide memo Ex. PW11/F, bearing his signature 21 of 59 22 FIR No. 310/11 PS - Alipur at point 'B'. Accused Rambir, present in the Court was interrogated and arrested vide arrest memo Ex. PW11/H and his personal search was conducted vide memo Ex. PW11/J, both bearing his signature at point 'B'. During the search of the accused, driving license was recovered and the same was seized vide memo Ex. PW11/M, bearing his signature at point 'B'. The Manager of the Hotel has produced the Register containing the entry regarding the booking of the room by accused Rambir and the photocopy of the corresponding page, the same were put into pullinda and sealed with the seal of 'DK' and seized vide memo Ex. PW11/G, bearing his signature at point 'B'. Manager of the hotel has also produced photocopy of the D/L of accused Rambir which was given as an I. D. Proof in the hotel, same was seized vide memo Ex. PW11/K, bearing his signature at point 'B'. The Motorcycle No. DL11SA8352 of accused Rambir was also seized from the parking of the hotel and the same was seized vide memo Ex. PW11/O, bearing his signature at point 'B'. Complainant (name withheld) was already sent to Hospital for medical examination through Constable Satyawati prior to the seizure of the exhibits. Thereafter, he alongwith IO also took the accused Rambir in SRHC Hospital for medical examination. Accused was medically 22 of 59 23 FIR No. 310/11 PS - Alipur examined and after medical examination, Doctor handed over the sealed pullinda containing the exhibits and same were seized vide memo Ex. PW11/L, bearing his signature at point 'B'. The exhibits of the prosecutrix were also seized vide memo Ex. PW11/M, bearing his signature at point 'B'. The signature of complainant was taken on the arrest memo when she identified him in the Hospital. After completing the investigation, they came back to PS and case property was deposited in the Malkhana. After getting recorded the statement of the prosecutrix u/s 164 Cr.P.C., further investigation was again handed over to him. On 18/11/2011, complainant had handed over to him her ICard of Sahara India, where she was working and the same was seized vide memo Ex. PW7/C, bearing his signature at point 'B'. He also recorded statement of Dilbagh of Sahara India with whom she was working. On 23/11/2011, the exhibits were sent to FSL through Constable Manish and after depositing the same he deposited the acknowledgment receipt with the MHC(M). He recorded their statement. After completing the investigation, challan was prepared and filed in the Court. Later on, FSL Result was collected and filed in the Court and the same is collectively exhibited as Ex. PX. Accused Rambir is present in the Court. He also 23 of 59 24 FIR No. 310/11 PS - Alipur identified two white pillow covers collectively exhibited as Ex. P3 and one white bed sheet Ex. P4, two cold drink bottle of CocaCola of 300 ml Ex. P5, five glasses out of which two are found broken collectively exhibited as Ex. P6, two condom cover of Durex and one unused condom collectively exhibited as Ex. P7, two used condoms collectively exhibited as Ex. P8, two water bottles of Aqua Fina collectively exhibited as Ex. P9, one sealed register, sealed with the seal of Court seal containing entry at Serial No. 13385, dated 07/09/2011 in the name of Rambir Singh S/o Pratap Singh and prosecutrix (name withheld) of Room No. 220 is Ex. P10 and the photocopy of the corresponding page is Ex. P11. The photocopy of the Driving License of Rambir Singh produced by Manager of Retreat Motel is Ex. P12. He can also identify the original D/L of the accused which was recovered during the personal search of the accused and the motorcycle no. DL11SA8352 which was seized from the parking (The driving License was taken by the accused on Superdari and the motorcycle was taken on Superdari by the father of the accused and same are not disputed).
PW16 - W/SI Santosh Kumari is the subsequent 24 of 59 25 FIR No. 310/11 PS - Alipur Investigating Officer (IO) who deposed that on 07/09/2011, he was posted at PS - Alipur as SI. On that day, on receiving information from DO of PS - Alipur, he alongwith lady Constable Satyawati reached at Retreat Motel, Alipur. There SI Dinesh, Constable Satbir and prosecutrix (name withheld) along with accused Rambir present in the Court (correctly identified) met her. She as well as SI Dinesh made inquiries from prosecutrix (name withheld) and SI Dinesh recorded statement/complaint of prosecutrix (name withheld) and prepared a tehrir and handed over the tehrir to Constable Satbir. Constable Satbir went to the PS and after getting the FIR registered, came back at the spot and handed over copy of FIR along with tehrir to her as further investigation of the case was marked to her. Meanwhile, she prepared site plan already exhibited as Ex. PW15/B signed by her at point 'A' at the instance of prosecutrix (name withheld). Thereafter, on her direction, Constable Satyawati took the prosecutrix to SRHC Hospital, Narela for her medical examination. Accused Rambir was arrested and his personal search was conducted vide memos already respectively exhibited as Ex. PW11/H and Ex. PW11/J, both signed by her at point 'X'. Thereafter, she along with SI Dinesh and Constable Satbir took 25 of 59 26 FIR No. 310/11 PS - Alipur accused Rambir to SRHC Hospital, Narela and she got his medical examination conducted. After the medical examination of accused Rambir and prosecutrix (name withheld), Doctors handed over her their exhibits in sealed condition along with sample seals and same were seized by her vide seizure memos respectively exhibited as Ex. PW11/L and Ex. PW11/M, both signed by her at point 'X'. Prior to leaving the spot, to go to Hospital, she also made seizure from Room No. 220, Retreat Motel. Crime team was called. She lifted white colour bed sheet and pillow cover from the spot and the same was put up into pullinda and sealed with the seal of 'DK' and seized vide memo Ex. PW11/A, bearing her signature at point 'X'. Two coca cola cold drink empty bottles were also lifted from the spot and same were put up into pullinda and sealed with the seal of 'DK' and seized vide memo Ex. PW11/B, bearing her signature at point 'X'. Five glasses were also lifted from the spot and same were put up into pullinda and sealed with the seal of 'DK' and seized vide memo Ex. PW11/C, bearing her signature at point 'X'. Two condom covers of Durex and one unused condom were also lifted from the spot and same were put up into pullinda and sealed with the seal of 'DK' and seized vide memo Ex. PW11/D, bearing her signature at point 26 of 59 27 FIR No. 310/11 PS - Alipur 'X'. Two used condoms were also lifted from the spot and gauze piece prepared from the condom, the same were put up into pullinda and sealed with the seal of 'DK' and seized vide memo Ex. PW11/E, bearing her signature at point 'X'. Two water bottles were also lifted from the spot and same were put up into pullinda and sealed with the seal of 'DK' and seized vide memo Ex. PW11/F, bearing her signature at point 'X'. During the search of the accused, driving license was recovered and the same was seized vide memo Ex. PW11/M, bearing her signature at point 'X'. During the personal search of the accused Rs. 1,050/ and one mobile phone were also recovered. The Manager of the Hotel has produced the Register containing the entry regarding the booking of the room by accused Rambir and the photocopy of the corresponding page, the same were put into pullinda and sealed with the seal of 'DK' and seized vide memo Ex. PW11/G, bearing her signature at point 'X'. Hotel of the Manager has also produced photocopy of the D/L of accused Rambir which was given as an ID Proof in the hotel, same was seized vide memo Ex. PW11/K, bearing her signature at point 'X'. The Motorcycle No. DL11SA8352 of accused Rambir was also seized from the parking of the hotel and the same was seized vide memo Ex.
27 of 59 28 FIR No. 310/11 PS - Alipur PW11/O, bearing her signature at point 'X'. Complainant (name withheld) was already sent to Hospital for medical examination through Constable Satyawati prior to the seizure of the exhibits. The signature of complainant was taken on the arrest memo when she identified him in the Hospital. After completing the investigation, they came back to PS and case property was deposited in the Malkhana. Accused Rambir was sent to Police lockup. She recorded the statement of witnesses and briefed the SHO about the facts of the case. On 08/09/2011 accused Rambir was produced in the Court and sent to JC. She moved an application Ex. PW14/A bearing her signatures at point 'B' for recording statement of prosecutrix u/s 164 Cr.P.C. and after getting recorded the statement she moved an application Ex. PW14/C bearing her signatures at point 'X' for obtaining the copy of the statement. Thereafter they came back to the PS. She collected the copy of DD no. 29A, copy of which is Ex. PW16/A. She also collected report of Director of Fingerprint Bureau and same is Ex. PW16/B. Later on further investigation was handed over to SI Dinesh. Accused Rambir is present in the Court. She identified two white pillow covers collectively exhibited as Ex. P3, one white bed sheet Ex. P4, two cold drink bottle of CocaCola of 300 ml collectively 28 of 59 29 FIR No. 310/11 PS - Alipur exhibited as Ex. P5, five glasses out of which two are found broken collectively exhibited as Ex. P6, two condom cover of Durex and one unused condom collectively exhibited as Ex. P7, two used condoms collectively exhibited as Ex. P8, two water bottles of Aqua Fina collectively exhibited as Ex. P9, one sealed register, sealed with the seal of Court seal it found containing entry at serial no. 13385 dated 07/09/2011 in the name of Rambir Singh S/o Pratap Singh and prosecutrix (name withheld) of Room No. 220 which were handed over by the Manager of Retreat Motel is Ex. P10 and the photocopy of the corresponding page is Ex. P11. The photocopy of the Driving License of Rambir Singh produced by Manager of Retreat Motel is Ex. P12. She can also identify the original D/L of the accused which was recovered during the personal search of the accused and the motorcycle no. DL11SA8352 which was seized from the parking (The driving License was taken by the accused on Superdari and the motorcycle was taken on Superdari by the father of the accused and same are not disputed).
The testimonies of the prosecution witnesses shall be dealt with in detail during the course of appreciation of evidence.
29 of 59 30 FIR No. 310/11 PS - Alipur
6. It is to be mentioned that on 04/02/2014, Learned Counsel for the accused made a statement and had admitted the medical examination of accused Rambir vide MLC Ex. PX1 and had stated that he has 'no objection' if the concerned Doctor is not examined as a witness in the Court.
7. Statement of accused Rambir was recorded u/s 313 Cr.P.C. wherein he pleaded innocence and false implication. He did not opt to lead any defence evidence.
8. Learned Counsel for the accused submitted that the prosecutrix has not supported the prosecution and the entire prosecution case is based on the testimony of the prosecutrix only. Learned Counsel further submitted that the circumstances of the case clearly suggest that it is a case of wilful, consensual sex and not of rape. Learned Counsel further submitted that the prosecutrix never raised any alarm to attract the attention of the people or other occupants in the hotel or the employees of the hotel. She did not attempt to run away from the door.
30 of 59 31 FIR No. 310/11 PS - Alipur Learned Counsel further submitted that there is no sign of any scuffle in the room. Learned Counsel further submitted that there are no scratches or injury on the person of either the victim or the accused as per their respective MLCs. Learned Counsel further submitted that in her cross examination, prosecutrix admits that she had the sexual intercourse with the accused wilfully and with her consent and earlier also she had it with the accused. She also gave the reason for lodging the FIR. Learned Counsel further submitted that there is no medical or chemical evidence that the prosecutrix was made to drink coca cola laced with intoxicant. Learned Counsel submitted that the prosecution has failed to prove its case beyond reasonable doubt against the accused and prayed for the acquittal of the accused on all the charged levelled against him.
9. 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.
31 of 59 32 FIR No. 310/11 PS - Alipur
10. I have heard Ms. Purnima Gupta, Learned Addl. PP for the State and Sh. J. H. Jafri, Learned Counsel for the accused and have also carefully perused the entire record.
11. The charge for the offences punishable u/s 328/365/376 IPC against accused Rambir is that on 07/09/2011, between 11:30 a.m. to 1:40 p.m., in Room No. 220, The Retreat Hotel (Be read as 'Motel'), Alipur, Delhi, within the jurisdiction of PS - Alipur, he caused some stupefying or intoxicating substance mixed in cold drink to be taken by prosecutrix (name withheld), to facilitate the commission of rape upon her and that on the above date, time and place he abducted the prosecutrix (name withheld), with intent to cause her to be secretly and wrongfully confined and thereafter confined her at the aforesaid room and that on the above said date, time and place, he committed rape upon prosecutrix (name withheld) against her wishes and without her consent.
12. 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 32 of 59 33 FIR No. 310/11 PS - Alipur the material witnesses, during the process of appreciation of evidence at some places their part of depositions have been reproduced, in the interest of justice.
AGE OF THE PROSECUTRIX
13. PW7 - prosecutrix in her statement recorded in the Court on 18/12/2012 while giving her particulars has stated her age as 31 years.
Moreover, the said factum of age of PW7 - prosecutrix has also not been disputed by accused Rambir. Nor any evidence to the contrary has been produced or proved on the record on behalf of the accused.
Since PW7 - prosecutrix has stated her age as 31 years on 18/12/2012 at the time of recording her evidence/statement in the Court and the date of alleged incident is 07/09/2011, on simple arithmetical calculation, the age of the prosecutrix comes to around 30 years as on the date of alleged incident on 07/09/2011.
33 of 59 34 FIR No. 310/11 PS - Alipur In the circumstances, it stands proved on record that PW7 - prosecutrix was aged around 30 years as on the date of incident on 07/09/2011.
MEDICAL EVIDENCE OF THE PROSECUTRIX
14. PW9 Dr. Hema Mahawan, Specialist Incharge (Gynae) SRHC Hospital, Narela, Delhi, has deposed that she has been deputed by MS, SRHC Hospital in place of Dr. Sapna to depose on her behalf. On 07/09/2011, Dr. Sapna was working as SR, Gynae in the aforesaid Hospital. On that day, prosecutrix was brought by Police officials for examination at about 4:00 p.m. The patient gave history of sexual assault. On gynaecological examination Dr. Sapna made observations at point encircled 'A' on MLC Ex. PW9/A. After detailed examination, samples as collected in forensic kit and handed over to IO by Dr. Sapna. She can identify handwriting and signatures of Dr. Sapna as she was working under her (PW9) in the same department of the Hospital.
Despite grant of opportunity, PW9 - Dr. Hema Mahawan was not crossexamined on behalf of the accused.
34 of 59 35 FIR No. 310/11 PS - Alipur In view of above and in the circumstances, the medical/gynaecological examination at point encircled 'A' on the MLC Ex. PW9/A of PW7 - prosecutrix stands proved on the record. VIRILITY OF THE ACCUSED
15. It is to be mentioned that on 04/02/2014, Learned Counsel for the accused made a statement and had admitted the medical examination of accused Rambir vide MLC Ex. PX1 and had stated that he has 'no objection' if the concerned Doctor is not examined as a witness in the Court.
Perusal of the MLC Ex. PX1 shows that the Doctor has opined it cannot be said that patient was not able to perform sexual intercourse.
In view of above and in the circumstances, it stands proved on the record that accused Rambir was capable of performing sexual intercourse.
35 of 59 36 FIR No. 310/11 PS - Alipur BIOLOGICAL AND SEROLOGICAL EVIDENCE
16. PW15 - SI Dinesh Dahiya in his examinationinchief tendered in evidence the FSL Result Ex. PX (colly.).
As per FSL report (Biological) Ex. PX the description of articles contained in parcel and result of analysis reads as under : DESCRIPTION OF ARTICLES CONTAINED IN PARCEL Parcel '1' : One sealed card board box parcel sealed with the seal of "SRHC HOSPITAL NARELA DELHI" containing exhibits '1a', '1b', '1c', '1d', '1e', '1f', '1g', '1h', '1i', '1j', '1k', '1l', '1m', '1n', '1o', '1p' & '1q'.
Exhibit '1a' : One plain paper kept in an envelope marked 'Step 4 Debri collection' kept unexamined as nothing was found.
Exhibit '1b' : One plain paper kept in an envelope marked 'Step 4 Debri collection' kept unexamined as nothing was found.
Exhibit '1c' : One sealed tube kept in an envelope marked 'Step 4 Body fluid collection' kept unexamined as it is sealed.
Exhibit '1d' : Few nail clippings kept in an envelope marked 'Step 4 Nail clipping'. Skin could not be detected on exhibit '1d' i.e. Nail clippings.
36 of 59 37 FIR No. 310/11 PS - Alipur Exhibit '1e' : Cotton wool swab on a wooden stick kept in an envelope marked 'Step 4 Inbetween fingers'. Exhibit '1f' : Cotton wool swab on a wooden stick kept in an envelope marked 'Step 5 Breast swab'.
Exhibit '1g' : One comb kept in an envelope marked 'Step 6 Combing of Pubic hair'.
Exhibit '1h' : Bunch of small strands of hair kept in an envelope marked 'Step 7 Clipping of Pubic hair'.
Exhibit '1i' : One plain paper kept in an envelope marked 'Step 8 Matter Pubic hair' kept unexamined as nothing was found.
Exhibit '1j' : One envelope marked 'Step 9 Vaginal secretion [V]' containing exhibits '1j1' and '1j2a' & '1j2b'.
Exhibit '1j1' : Cotton wool swab on a wooden stick. Exhibit '1j2a' : Two microslides having faint whitish smear & '1j2b' kept in a plastic cover.
Exhibit '1k' : Cotton wool swab on a wooden stick kept in a tube and then kept in an envelope marked 'Step 9 Cervical mucus collection [C]'.
Exhibit '1l' : Cotton wool swab on a plastic stick alongwith fluid kept in a tube and then kept in an envelope marked 'Step 10 Culture'.
Exhibit '1m' : Small amount of liquid kept in a syringe and then kept in an envelope marked 'Step 11 Washing from vagina'.
Exhibit '1n' : One envelope marked 'Step 12 Rectal examination' containing exhibits '1n1' and 37 of 59 38 FIR No. 310/11 PS - Alipur '1n2a' & 1n2b'.
Exhibit '1n1' : Cotton wool swab on a wooden stick kept in a tube.
Exhibit '1n2a' : Two microslides having faint whitish smear & '1n2b' kept in a plastic cover. Exhibit '1o' : One envelope marked 'Step 13 Oral swab'
containing exhibits '1o1' and '1o2a' & '1o2b'. Exhibit '1o1' : Cotton wool swab on a wooden stick.
Exhibit '1o2a' : Two microslides having very faint whitish
& '1o2b' smear kept in a plastic cover.
Exhibit '1p' : Dark brown foul smelling liquid kept in two
tubes & then kept in an envelope marked 'Step
14 Blood collection of victim'.
Exhibit '1q' : One envelope marked 'Step 15 Urine and
Oxalate Blood vial' containing exhibits '1q1' & '1q2'.
Exhibit '1q1' : Dark brown foul smelling liquid kept in a tube.
Exhibit '1q2a' : Small amount of foul smelling straw coloured & '1q2b' liquid kept in a plastic container. Parcel '2' : One sealed envelope marked 'Step 3B' sealed
with the seal of 'SRHC HOSPITAL NARELA DELHI' containing exhibits '2a' and '2b'.
Exhibit '2a' : One underwear. Exhibit '2b' : One brassiere. Parcel '3' : One sealed envelope marked 'Step 3A Outer
Clothing' sealed with the seal of 'SRHC HOSPITAL NARELA DELHI' 38 of 59 39 FIR No. 310/11 PS - Alipur containing exhibits '3a', '3b' & '3c'.
Exhibit '3a' : One salwar. Exhibit '3b' : One lady's shirt. Exhibit '3c' : One chunni. Parcel '4' : One sealed cloth parcel sealed with the seal
of 'SRHC HOSPITAL NARELA DELHI' containing exhibits '4a', '4b' & '4c'.
Exhibit '4a' : One underwear having dirty stains.
Exhibit '4b' : One Few nail clippings. Exhibit '4c' : Dark brown foul smelling liquid kept in a tube. Parcel '5' : One sealed cloth parcel sealed with the seal
of "DK" containing exhibits '5a', '5b' & '5c'.
Exhibit '5a' : One pillow cover.
Exhibit '5b' : One pillow cover.
Exhibit '5c' : One bed sheet.
Parcel '6' : One sealed cloth parcel sealed with the seal of
"DK" containing exhibits '6a' & '6b'.
Exhibit '6a' : Two rubber pieces described as 'Used condom'.
Exhibit '6b' : Gauze cloth piece having yellowish stains
described as 'Gauze piece'.
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RESULT OF ANALYSIS
1. Blood was detected on exhibits '1p', '1q1' & '4c'.
2. Blood could not be detected on exhibits '1d', '1e', '1f', '1g', '1h', '1j1', '1k', '1l', '1m', '1n1', '1o1', '1q2', '4a' & '4b'.
3. Human semen was detected on exhibits '1n2a', '1n2b', '4a', '5c', '6a' & '6b'.
4. Semen could not be detected on exhibits '1d', '1e', '1f', '1g', '1h', '1j1', '1j2a', '1j2b', '1k', '1l', '1m', '1n1', '1o1', '1o2a', '1o2b', '1q2', '2a', '2b', '3a', '3b', '3c', '4b', '5a' & '5b'.
5. Skin could not be detected on exhibit '1d'.
6. Report of serological analysis in original is attached herewith. NOTE : Remnants of the exhibits have been sealed with the seal of 'P.Sh. FSL DELHI'.
The FSL report (Serological) Ex. PX reads as under : Exhibits Species of origin ABO Grouping/Remarks Blood Stains:
'1p' Blood sample Sample blood putrefied, hence no opinion '1q1' Blood sample Sample blood putrefied, hence no opinion '2c' Blood sample Sample blood putrefied, hence no opinion Semen stains:
'4a' Underwear 'B' group
'5c' Bedsheet 'B' group
'6a' Rubber pieces No reaction
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'6b' Gauze cloth piece 'B' group
As per the FSL report (biological) Ex. PX, with regard to the description of the articles contained in the parcels, it is noticed that Parcel Nos. 1, 2 & 3 belong to the prosecutrix which were seized vide seizure memo Ex. PW11/M, dated 07/09/2011, parcel nos. 4 belongs to accused Rambir which was seized vide seizure memo Ex. 11/L, dated 07/09/2011, parcel no. 5 is containing the exhibits which were lifted from the spot and were seized vide seizure memo Ex. 11/A dated 07/09/2011 and parcel no. 6 is containing the exhibits which were lifted from the spot and were seized vide seizure memo Ex. 11/E dated 07/09/2011.
On careful perusal and analysis of the biological and serological evidence on record, it clearly shows that blood was detected on exhibit '1p' (Blood collection of the victim/prosecutrix), exhibit '1q1' (Dark brown foul smelling liquid of the prosecutrix) & exhibit '4c' (Dark brown foul smelling liquid of the accused); blood could 41 of 59 42 FIR No. 310/11 PS - Alipur not be detected on exhibit '1d' (Nail clipping of the prosecutrix), exhibit '1e' (Inbetween fingers of the prosecutrix), exhibit '1f' (Breast swab of the prosecutrix), exhibit '1g' (Combing of pubic hair of the prosecutrix), exhibit '1h' (Clipping of pubic hair of the prosecutrix), exhibit '1j1' (Cotton wool swab on a wooden stick of the prosecutrix), exhibit '1k' (Cervical mucus collection [C] of the prosecutrix), exhibit '1l' (Culture of the prosecutrix), exhibit '1m' (Washing from vagina of the prosecutrix), exhibit '1n1' (Cotton wool swab on a wooden stick of the prosecutrix), exhibit '1o1' (Cotton wool swab on a wooden stick of the prosecutrix), exhibit '1q2' (Small amount of foul smelling straw coloured liquid of the prosecutrix), exhibit '4a' (Underwear having dirty stains of the accused) & exhibit '4b' (Few nail clippings of the accused);
Human semen was detected on exhibit '1n2a' (Microslide having faint whitish smear of the prosecutrix), exhibit '1n2b' (Microslide having faint whitish smear of the prosecutrix), exhibit '4a' (Underwear having dirty stains of the accused), exhibit '5c' (Bed Sheet lifted from the spot), exhibit '6a' (Used condom lifted from the spot) & exhibit '6b' (Gauze piece lifted from the spot); semen could not be detected on exhibit '1d' (Nail clippings of the prosecutrix), 42 of 59 43 FIR No. 310/11 PS - Alipur exhibit '1e' (Inbetween fingers of the prosecutrix), exhibit '1f' (Breast swab of the prosecutrix), exhibit '1g' (Combing of pubic hair of the prosecutrix), exhibit '1h' (Clipping of pubic hair of the prosecutrix), exhibit '1j1' (Cotton wool swab on a wooden stick of the prosecutrix), exhibit '1j2a' (Microslide having faint whitish smear of the prosecutrix), exhibit '1j2b' (Microslide having faint whitish smear of the prosecutrix), exhibit '1k' (Cervical mucus collection of the prosecutrix), exhibit '1l' (Culture of the prosecutrix), exhibit '1m' (Washing from vagina of the prosecutrix), exhibit '1n1' (Cotton wool swab on a wooden stick of the prosecutrix), exhibit '1o1' (cotton wool swab on a wooden stick of the prosecutrix), exhibit '1o2a' (Microslide having very faint whitish smear of the prosecutrix), exhibit '1o2b' (Microslide having very faint whitish smear of the prosecutrix), exhibit '1q2' (Small amount of foul smelling straw coloured liquid of the prosecutrix), exhibit '2a' (Underwear of the prosecutrix), exhibit '2b' (Brassiere of the prosecutrix), exhibit '3a' (Salwar of the prosecutrix), exhibit '3b' (Lady's shirt of the prosecutrix), exhibit '3c' (Chunni of the prosecutrix), exhibit '4b' (Few nail clippings of the accused), exhibit '5a' (Pillow cover lifted from the spot) & exhibit '5b' (Pillow cover lifted from the spot); and skin could 43 of 59 44 FIR No. 310/11 PS - Alipur not be detected on exhibit '1d' (Nail clippings of the prosecutrix). As per the FSL Report (serological) Ex. PX 'Sample was putrefied hence no opinion' could be given on the exhibit '1p' (Blood Sample of the prosecutrix), exhibit '1q1' (Dark brown foul smelling liquid of the prosecutrix) and exhibit '4c' (Blood Sample of accused).
On a conjoint reading of the medical/gynaecological examination at point encircled 'A' on MLC Ex. PW9/A of the prosecutrix, together with the MLC of accused Rambir Ex. PX1, in the light of the biological and serological evidence detailed hereinabove it clearly indicates the taking place of sexual intercourse activity.
In the circumstances, it stands clearly established on the record that sexual intercourse activity has taken place in the instant case.
17. Now let the testimony of PW7 Prosecutrix be perused and analysed.
PW7 prosecutrix, in her examinationinchief has deposed 44 of 59 45 FIR No. 310/11 PS - Alipur which is reproduced and reads as under : "I am working as an Agent for Sahara Company. About 23 month prior to the incident, I was going for work somewhere and met accused Rambir at Rithala Metro Station. Accused saw file of Sahara India in my hand and asked me if I was working somewhere. I replied to him in affirmative and told him that I was doing work of getting FD/RD for the company. Accused told me that he was a Property Dealer and could help me in getting work of FD/RD. Accused gave me his mobile phone number and I also gave him my mobile phone number. Thereafter we went out respective ways. I had telephonic talk with accused 23 times regarding business of FD/RD.
On 07/09/2011, accused gave me a call in the morning and told me to come for getting the FDRs made. He called me at the Bus stand of Sector - 24, Rohini. Accused made me sit on his bike and told me that we would be going to some office. Accused took me to Alipur to Splash and made me sit inside and told me that his friends would be coming there. I asked accused where his friends were and he told me that his friends were coming. I waited there for 1520 minutes and then I moved on as I felt that friends of accused were not going to come. Accused came after me and told me that his friends were about to come. He also told me that to sit comfortably in a room till his friends came. Accused took me to a room and made me sit there. I again asked him where his friends were. Accused told me that he would just give them a call and come. Accused went out to make a call and came back. I again asked him about his friends. Accused told me to have cold drink and said that his friends were on their way. Accused ordered for cold drink. I went to freshen myself up in the toilet. When I came back, accused had already poured cold drink in the glass. I did not want to have the cold 45 of 59 46 FIR No. 310/11 PS - Alipur drink but accused insisted that I should have the same and that his friends were on their way. After drinking the cold drink, my head started swimming ("mujhe chakar ane lage"). I asked accused what he had mixed in the cold drink. Accused said that he had not put anything in the cold drink. "Accused mere sath hathapai karne lage, maine kafi der tak uske hath hataye, par phir mujhe hosh mahi raha, jab mujhe hosh aya to mere kapde nahi the, maine bathroom me ja kar apne kapde pehne, maine accused se pucha ki yeh apne kya kiya, usne kaha shor machaya to yahi kat ke dal dunga. Tab maine 100 number par phone kar diya".
Police came to the spot and apprehended the accused, who was trying to run away from there. I was taken for my medical examination. I was taken back to my house at 12:00 at night.
The witness has identified accused Rambir, who is present in the Court today through the design in the wooden partition.
I had filed my complaint with the Police. My complaint is Ex. PW7/A which bears my signatures at point 'A'.
I had apprehended before Learned MM and given my statement u/s 164 Cr.P.C.
At this stage, a sealed envelope bearing seal of 'DS' is open and statement of prosecutrix u/s 164 Cr.P.C. is taken out and shown to the witness, who identifies her signatures at point 'A' thereupon. The said statement is now exhibited as Ex. PW7/B. I handed over my original ICard to the Police which was seized by the IO vide seizure memo Ex. PW7/C which bears my signatures at point 'A'. My ICard is already Ex. PW6/A. I can identify the case property, if shown to me. At this stage, MHC(M) produced one sealed envelope 'Parcel No. 2, sealed with the seal of PSh FSL Rohini. Same is opened and it is found to contain one underwear and one bra shown to the 46 of 59 47 FIR No. 310/11 PS - Alipur witness, who correctly identifies it to be the same which she was wearing on the day of incident. The said clothes are exhibited as Ex. P1 (colly.).
MHC(M) produced one sealed envelope 'Parcel No. 3, sealed with the seal of PSh FSL Rohini. Same is opened and it is found to contain one salwar, one lady's shirt and one chunni, shown to the witness, who correctly identifies it to be the same which she was wearing on the day of incident. The said clothes are exhibited as Ex. P2 (colly.).
MHC(M) produced one sealed envelope 'Parcel No. 5, sealed with the seal of PSh FSL Rohini. Same is opened and it is found to contain two white pillow covers and one white bed sheet, shown to the witness, who expresses her inability to identify the same . These articles are put back in the envelope and sealed again."
PW7 - Prosecutrix was also put a leading question and the reply given by the prosecutrix is reproduced and reads as under : "(At this stage, Ld. Addl. PP for the State seeks permission to ask leading question from this witness regarding details of the incident. Heard. Allowed).
I was not at all conscious after sometime of drinking the cold drink and I cannot say what happened with me."
PW7 - prosecutrix was also crossexamined by the Learned Addl. PP for the State, the crossexamination as was conducted by the Learned Addl. PP for the State is reproduced and 47 of 59 48 FIR No. 310/11 PS - Alipur reads as under : "It is correct that I had stated in my complaint Ex. PW7/A that "Jo Rambir ne mujhe chedkhani shuru kar di, jinka maine virodh kiya parantu nashe ke karan me bahut jayada bal nahi laga pai, jo usne mere kapde utar diye, jo us doran mujhe halkahalka hosh tha woh usne apne peshab karne wali cheej/ang ko mere peshab karne wali jagah dal diya woh dhiredhire me behosh ho gai". I could not give these details earlier as I was feeling embarrassed."
During her crossexamination, as conducted by the Learned Counsel for the accused recorded on 06/05/2013, PW7 - prosecutrix has deposed, which is reproduced and reads as under : "It is correct that I was knowing accused Rambir six months prior to the incident. It is correct that accused Rambir used to give me business for getting the FDRs made on which I used to get commission. It is correct because of this business a good relationship was established between us. It is also correct that because of this business closed physical relationships had also been established between us.
It is correct prior to 07/09/2011, I had also checked in hotel Splash with accused Rambir with my own will and consent and we had enjoyed sex also.
It is correct that on 07/09/2011 I had gone with accused Rambir to Hotel Splash and had enjoyed sex with him with my own free Will and consent. It is also correct that on 07/09/2011 at about 1:00 p.m. the lunch was also ordered by me in the room and had lunched also with 48 of 59 49 FIR No. 310/11 PS - Alipur accused Rambir. It is correct that the present case has been got registered by me against accused Rambir as the Waiter who had come in the room at hotel Splash where I was present with accused Rambir, was of my village and he (Waiter) had recognized me and to save myself from defamation or (and) that I had an altercation with accused Rambir that he has brought me in a hotel where the Waiter had recognized me. It is correct that because of anger (Guse mai) I had got registered the present case against accused Rambir to save myself from defamation."
(Underlined by me) After the crossexamination of PW7 - prosecutrix by the Learned Counsel for the accused, she was reexamined/cross examined by the Learned Addl. PP for the State recorded on 08/07/2013 which is reproduced and reads as under : "The mobile phone no. 9582686217 belongs to me. It is correct that I made call to Police at 100 number on the date of incident i.e. 07/09/2011 from the said mobile number. It is wrong to suggest that I have deposed falsely during my crossexamination on 06/05/2013 conducted on behalf of accused that on 07/09/2011 I had enjoyed sex with accused Rambir with my own free will and consent. It is wrong to suggest that I have deposed falsely during my crossexamination on 06/05/2013 conducted on behalf of accused that the present case has been got registered by me against accused Rambir as the waiter who had come in the room at Hotel Splash where I was present with accused Rambir, was of my village and he (waiter) had recognised me and to save myself from the defamation or (and) that I had alteration with accused 49 of 59 50 FIR No. 310/11 PS - Alipur Rambir that he has brought me in a Hotel where the waiter had recognized me. It is wrong to suggest that I have deposed falsely during my crossexamination on 06/05/2013 conducted on behalf of accused that because of anger (gussey me) I had got registered the present case against the accused Rambir to save myself from the defamation.
It is wrong to suggest that no waiter of my village was in the employment at Splash Hotel on the day of incident on 07/09/2011 or that all the waiters were of the hilly areas or that no waiter of my village had come in the room where I was present with accused Rambir or that my no altercation had taken place with accused Rambir on the point that he had brought me in a Motel where the waiter of my village had recognized me. It is wrong to suggest that I have deposed falsely in my crossexamination conducted on behalf of accused on 06/05/2013 as I have compromised the matter with accused and have been won over by him."
After the reexamination/crossexamination of PW7 - prosecutrix by the Learned Addl. PP for the State recorded on 08/07/2013 she was further crossexamined by the Learned Counsel for the accused, which is reproduced and reads as under : "Q. Is it correct that your statement which was recorded on 18/12/2012in the Court of Ms. Illa Rawat, Ld. ASJ, Rohini, Delhi was made by you under the pressure of Police?
Ans. At that time, my condition was not good and I was also having fever and whatever I was told by Police and I made the 50 of 59 51 FIR No. 310/11 PS - Alipur statement."
From the aforesaid narration, on analysing the entire testimony of PW7 - prosecutrix, it is found that in the witness box, she has not withstood the test of crossexamination and her testimony is found to be inconsistent and at variance as to what she deposed in her examinationinchief. Her version on the core spectrum of the crime failed to remain intact.
During her crossexamination conducted on behalf of Learned Counsel for the accused, as reproduced hereinabove, PW7
- prosecutrix has admitted it to be correct that she was knowing accused Rambir six months prior to the incident, that accused Rambir used to give her business for getting the FDRs made on which she used to get commission; because of this business a good relationship was established between them; that because of this business closed physical relationships had also been established between them; prior to 07/09/2011, she had also checked in hotel Splash with accused Rambir with her own Will and consent and they had enjoyed sex also; that on 51 of 59 52 FIR No. 310/11 PS - Alipur 07/09/2011 she had gone with accused Rambir to Hotel Splash and had enjoyed sex with him with her own free Will and consent; that on 07/09/2011 at about 1:00 p.m. the lunch was also ordered by her in the room and had lunched also with accused Rambir; that the present case has been got registered by her against accused Rambir as the Waiter who had come in the room at hotel Splash where she was present with accused Rambir, was of her village and he (Waiter) had recognized her and to save herself from defamation or (and) that she had an altercation with accused Rambir that he has brought her in a hotel where the Waiter had recognized her; that because of anger (Guse mai) she had got registered the present case against accused Rambir to save herself from defamation.
She did not support the prosecution on the statement made by her to the Police Ex. PW7/A as well as her statement recorded u/s 164 Cr.P.C. Ex. PW7/B and negated the suggestions as were put to her by the Learned Addl. PP for the State during her re examination/crossexamination as reproduced hereinabove that, she has deposed falsely during her crossexamination on 06/05/2013 52 of 59 53 FIR No. 310/11 PS - Alipur conducted on behalf of accused that on 07/09/2011 she had enjoyed sex with accused Rambir with her own free will and consent or that she has deposed falsely during her crossexamination on 06/05/2013 conducted on behalf of accused that the present case has been got registered by her against accused Rambir as the waiter who had come in the room at Hotel Splash where she was present with accused Rambir, was of her village and he (waiter) had recognised her and to save herself from the defamation or that she had alteration with accused Rambir that he has brought her in a Hotel where the waiter had recognized her or that she has deposed falsely during her crossexamination on 06/05/2013 conducted on behalf of accused that because of anger (gussey me) she had got registered the present case against the accused Rambir to save herself from the defamation or that no waiter of her village was in the employment at Splash Hotel on the day of incident on 07/09/2011 or that all the waiters were of the hilly areas or that no waiter of her village had come in the room where she was present with accused Rambir or that her no altercation had taken place with accused Rambir on the point that he had brought her in a Motel where the waiter of her village had recognized her or that she has deposed falsely in her crossexamination 53 of 59 54 FIR No. 310/11 PS - Alipur conducted on behalf of accused on 06/05/2013 as she has compromised the matter with accused and has been won over by him.
During her crossexamination by the Learned Counsel for the accused, recorded after the reexamination (cross examination) of Learned Addl. PP for the State, as reproduced here inabove, PW7 - prosecutrix has specifically explained the reasons and the circumstances under which she made her statement in the Court, recorded on 18/12/2012 and has deposed that, at that time, (at the time of recording of her statement in the Court of Ms. Illa Rawat, Learned ASJ on 18/12/2012), her condition was not good and she was also having fever and whatever was told by Police and she made the statement.
As discussed hereinbefore, PW7 - prosecutrix was found to be aged around 30 years as on the date of incident on 07/09/2011, from the testimony of PW7 prosecutrix, it is not being indicated that on 07/09/2011, between 11:30 a.m. to 01:40 p.m., accused Rambir abducted PW7 - prosecutrix with intent to cause 54 of 59 55 FIR No. 310/11 PS - Alipur her to be secretly and wrongfully confined in Room No. 220, the Retreat Motel, Alipur, Delhi and confined her there or that accused Rambir caused some stupefying or intoxicating substance mixed in cold drink to be taken by prosecutrix with intent to facilitate the commission of rape upon her or that at the aforesaid room he committed rape upon the prosecutrix against her wishes and without her consent.
18. It is well settled that rape, is crime and not a medical condition. Rape is a legal term and not a diagnosis to be made by the medical officer treating the victim.
It is to be noticed that the opinion expressed by Modi in Medical jurisprudence and Toxicology (Twenty First Edition) at page 369 which reads as : "Thus to constitute the offence of rape it is not necessary that there should be complete penetration of penis with emission of semen and rupture of hymen. Partial penetration of the penis within the labia majora or the vulva or pudenda with or without emission of semen or even an attempt at penetration is quite possible to commit legally the 55 of 59 56 FIR No. 310/11 PS - Alipur offence of rape without producing any injury to the genitals or leaving any seminal stains. In such a case the medical officer should mention the negative facts in his report, but should not give his opinion that no rape had been committed. Rape, is crime and not a medical condition. Rape is a legal term and not a diagnosis to be made by the medical officer treating the victim. The only statement that can be made by the medical officer is that there is evidence of recent sexual activity. Whether the rape has occurred or not is a legal conclusion, not a medical one."
In Parikh's Textbook of Medical jurisprudence and Toxicology, the following passage is found : "Sexual intercourse : In law, this term is held to mean the slightest degree of penetration of the vulva by the penis with or without emission of semen. It is therefore quite possible to commit legally the offence of rape without producing any injury to the genitals or leaving any seminal stains."
In Encyclopedia of Crime and Justice (Vol. 4) at page 1356, it is stated : ".....even slight penetration is sufficient and emission is unnecessary."
On a careful reading of the testimony of PW7 - Prosecutrix 56 of 59 57 FIR No. 310/11 PS - Alipur as reproduced, discussed and analysed hereinbefore, in the light of medical/gynaecological examination at point 'A' encircled on MLC Ex. PW9/A of the prosecutrix, biological and serological evidence Ex. PX (colly.), together with the MLC of accused Rambir Ex. PX1, as discussed hereinbefore, the act of sexual intercourse activity by complete penetration of penis with emission of semen or by partial penetration of the penis with emission of semen, within labia majora or the vulva or pudenda stands proved.
In the circumstances, it stands clearly established on the record, of the performance of the act of sexual intercourse by accused Rambir with PW7 - Prosecutrix with her consent.
19. In view of above and in the circumstances, I find that the prosecution has failed to prove its case beyond reasonable doubt against accused Rambir. There is nothing on the record to indicate that on 07/09/2011 between 11:30 a.m. to 1:40 p.m., accused Rambir abducted PW7 - prosecutrix with intent to cause her to be secretly confined in Room No. 220, The Retreat Motel, Alipur, Delhi and confined her there or that accused Rambir caused some stupefying or intoxicating substance 57 of 59 58 FIR No. 310/11 PS - Alipur mixed in cold drink to be taken by prosecutrix with intent to facilitate the commission of rape upon her or that at the aforesaid room he committed rape upon the prosecutrix against her wishes and without her consent.
I, accordingly, acquit accused Rambir for the offences punishable u/s 328/365/376 IPC.
20. In view of above discussion, I am of the considered opinion that as far as the involvement of accused Rambir in the commission of the offences u/s 328/365/376 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 Rambir beyond shadows of all reasonable doubts and there is a room for hypothesis, consistent with that of innocence of accused Rambir. I, therefore acquit accused Rambir for the offences punishable u/s 328/365/376 IPC after giving him the benefit of doubt. Accused Rambir is in JC. He be released forthwith, if not wanted in any other case. However, on his release accused Rambir shall appear in the Court and shall execute a bail bond in the sum of Rs. 25,000/ under section 437A Cr.P.C.
58 of 59 59 FIR No. 310/11 PS - Alipur Announced in the open Court (MAHESH CHANDER GUPTA) on 28th Day of May, 2014 Additional Sessions Judge Special Fast Track Court (N/W District), Rohini, Delhi 59 of 59