Delhi District Court
State vs . Allauddin on 29 January, 2016
1
FIR No. 308/12
PS - Jahangir Puri
IN THE COURT OF SH. MAHESH CHANDER GUPTA :
ADDITIONAL SESSIONS JUDGE : SPECIAL FAST TRACK
COURT : NORTH DISTRICT : ROHINI : DELHI
SESSIONS CASE NO. : 258/13
Unique ID No. : 02404R0199532013
State Vs. Allauddin
S/o Mohd. Saffruddin
R/o EE, Jhuggi No. 249,
Jahangir Puri, Delhi.
FIR No. : 308/12
Police Station : Jahangir Puri
Under Sections : 376/328 IPC
Date of committal to session Court : 23/07/2013
Date on which judgment reserved : 23.01.2016
Date on which judgment announced : 29.01.2016
J U D G M E N T
1. Briefly stated the case of the prosecution as unfolded by the 1 of 67 2 FIR No. 308/12 PS - Jahangir Puri report under section 173 Cr.P.C. is as under : That on 28/11/2012 on receipt of DD No. 6A W/SI Vineeta reached at PS - Jahangir Puri where Prosecutrix (name withheld being a case U/S 376 IPC) D/o Allauddin R/o Jhuggi No. 249, EE Block, Jahangir Puri, Delhi was found present who explained the circumstances and thereafter she (Prosecutrix) was taken for medical examination with Lady Constable Sharmila and her medical examination was got conducted vide MLC No. 50961 and after her medical examination, Prosecutrix made the statement which is to the effect that, she lives at the above address with her mother, father and brother. Her mother Roshan Nisha had gone to Bihar Darbhanga. Her elder brother Ashfaq works in Mumbai. One brother Ali Raja lives in Madarsa in CBlock. Third and the youngest brother Navi Raja lives with her. Her mother does the work of selling Icecream in the Som Bazar, which is held, between E & D Block, Jahangirpuri. As the Icecream season is over, therefore, her mother has gone to Bihar. Her father does the work of Tea Selling near Metro Station, Jahangir Puri. At about 9:00/9:30 p.m. her father after mixing something, gave her milk to drink. She drank the milk. She became unconscious. When at about 4:00 a.m. in the morning she awoke 2 of 67 3 FIR No. 308/12 PS - Jahangir Puri from her sleep then her father was committing Badamizee with her. Her father had opened her salwar and had kept his hand on her breast and had committed galat kam (rape) with her. After the (rape) 'Galat Kaam' had been committed, when she dialed phone to her mother from the phone of her father, her father snatched the mobile from her hand and said that "Your condition is not well, you go to sleep" (Teri tabiyat thik nahi hai, tu sooja). Thereafter, her father laid her brother sleep by her side after lifting him from the other room of the Jhuggi where he was sleeping (iske baad papa ne jhuggi ke dusare kamre mai soo rahe mere bhai ko udha kar meri bagal mai sula diya) and he himself after bolting the room of the jhuggi from the outside, fled away. She screamed too much (mai kafi chilai), on which one neighbour came and opened the door and then she from the other mobile kept in the house made the call at number 100. Police reached there and she came to the Police Station. Her medical examination has been got conducted and inquiries have been made from her. Her father after administering her some intoxicating substance has committed rape upon her. Legal action be taken against her father. She has heard the statement and is correct. On the basis of the statement, from the inspection of the MLC and from the circumstances, finding 3 of 67 4 FIR No. 308/12 PS - Jahangir Puri that offences u/s 328/376 IPC appeared to have been committed, the case was got registered. Statements of witnesses were recorded. Case property was deposited in the Malkhana. The Crime Team was called. Further investigation was handed over to SI Rakhi who recorded the statements u/s 161 Cr.P.C. of the Prosecutrix in the hospital itself where she was admitted as well as her mother. On 30/11/2012, after discharge of the Prosecutrix from the hospital, at her instance site plan was prepared. Statement of the Prosecutrix was got recorded u/s 164 Cr.P.C. Accused Allauddin was searched for but he could not be found and NBW was got issued against him and the order for the processes u/s 82/83 Cr.P.C. were obtained. On 02/03/2013, the investigation was assigned to SI Shashi Lata and thereafter, on 06/04/2013 the investigation was assigned to W/SI Kamal Duggal. On 12/04/2013 accused Allauddin surrendered in the Court and after obtaining permission from the Learned MM he was interrogated, arrested and his one day Police Remand was obtained. His medical examination was got conducted. The pointing out memo of the place of incident was prepared on the pointing out of the accused. Case property was deposited in the Malkhana. Statements of the witnesses u/s 161 Cr.P.C. were recorded.
4 of 67 5 FIR No. 308/12 PS - Jahangir Puri The sealed exhibits were sent to the FSL.
Upon completion of necessary further investigation challan for the offences u/s 376/328 IPC was prepared against accused Allauddin and was sent to the Court for trial.
2. Since the offence under section 376 IPC is exclusively triable by the Court of Session therefore, after compliance of the provisions of section 207 Cr.P.C. the case was committed to the Court of Session under section 209 Cr.P.C.
3. Upon committal of the case to the Court of session and after hearing on charge, prima facie a case under sections 376/328 IPC was made out against accused Allauddin. 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 26 witnesses. PW1 - HC Rajender Singh, PW2 - HC Jai Pal Singh, PW3 - Dr. Latika, SR, Gynae, BJRM Hospital, Delhi, PW4 - SI 5 of 67 6 FIR No. 308/12 PS - Jahangir Puri Ramesh Chand, PW5 - HC Sudhir Kumar, PW6 - Dr. Gagan, Jr. Resident, Dr. BSA Hospital, Delhi, PW7 - Constable Rahul, PW8 - Lady Constable Sheela, PW9 - Dr. Gopal Krishna, Medical Officer, BJRM Hospital, Delhi, PW10 - Constable Naresh Kumar, PW11 - Lady Constable Sharmila, PW12 - Dr. Chhitiz Mohan, Senior Resident, Surgery, BJRM Hospital, Jahangir Puri, Delhi, PW13 - Dr. Sumit Arora, SR Medicine, BJRM Hospital, Delhi, PW14 - W/Constable Suman Lata, PW15 - Prosecutrix (name withheld), PW16 - SI Arvind, PW17 - Ms. Roshan Nisha, PW18 - HC Guman Singh, PW19 - HC Sandeep, PW20 - Inspector Kamal Duggal, PW21 - Sh. Sunil Kumar, MM, North, Rohini Courts, Delhi, PW22 Sh. Navi Raja, PW23 - Sh.Dharampal, PW24 - W/SI Vineeta Prasad, PW25 - W/SI Shashi Lata and PW26 - SI Rakhi.
5. In brief the witnessography of the prosecution witnesses is as under : PW1 - HC Rajender Singh is the Duty Officer, who deposed that on 28/11/2012, he was posted at PS - Jahangir Puri and his duty hours were from 8:00 a.m. to 4:00 p.m. On that day, at about 1:20 p.m., W/Constable Sharmila brought a Rukka sent by SI Vineeta Prasad 6 of 67 7 FIR No. 308/12 PS - Jahangir Puri and on the basis of Rukka he got registered the FIR from Computer Operator vide FIR No. 308/12, u/s 328/376 IPC correctly. He has brought the original FIR register and copy of same is Ex. PW1/A signed by him at point 'A'. He has also made endorsement regarding registration of FIR vide DD No. 16A at point 'A' on the Tehrir. After registration of FIR another copy of computerized FIR and original Tehrir was handed over to W/Constable Sharmila for handing over the same to SI Vineeta to whom further investigation was entrusted. The Certificate u/s 65B regarding the feeding of the contents of FIR correctly is Ex PW1/B signed by him at point 'A'.
PW2 - HC Jai Pal Singh is the MHC(M), who deposed that on 28/11/2012, he was posted at PS - Jahangir Puri. He has brought the Register No. 19 and 21. On that day, W/SI Vineeta has deposited two pullindas and sample seal sealed with the seal of MS BJRM Hospital. He made entry in Register No. 19 at Serial No. 3529. On the same day, W/SI Vineeta has also deposited pullinda sealed with the seal of 'R' and he made entry at the same Serial No. 3529 in the Register No. 19 below the above entry. On the same day, W/SI Vineeta has also deposited 7 of 67 8 FIR No. 308/12 PS - Jahangir Puri pullinda sealed with the seal of MS BJRM Hospital and he made entry at the same Serial No. 3529 in the Register No. 19 below the above entries. The copy of the extract of entries of Register No. 19 is Ex. PW2/A (original seen and returned). Two pullindas sealed with the seal of BJRM Hospital and a sample seal of MS BJRM Hospital and one another sample seal with the seal of "R" was sent to FSL Rohini on 06/12/2012 vide RC No. 151/21/12 through Constable Naresh and he made entries in this respect at point 'A' on Ex. PW2/A. One another pullinda sealed with the seal of MS BJRM Hospital was sent to FSL Rohini through Constable Naresh on 06/12/2012 and the entry was made at point 'B' on Ex. PW2/A and the result from FSL and pullinda containing the remnants of the contents of pullinda received from FSL on 21/03/2013 through HC Umesh and he made entry at point 'C' on Ex. PW2/A. He has also brought RC register and the copy of RC No. 151/21/12 is Ex. PW2/B and the copy of RC No. 152/21/12 is Ex. PW2/C (Original seen and returned). Constable Naresh had given the acknowledgment of the case acceptance by FSL official after returning from PS is Ex. PW2/D (original seen and returned). The copy of the acknowledgment of the case acceptance by FSL official vide RC No. 8 of 67 9 FIR No. 308/12 PS - Jahangir Puri 152/21/12 after returning from PS is Ex. PW2/E (original seen and returned).
PW3 - Dr. Latika, SR, Gynae, BJRM Hospital, Delhi, who deposed that she has been deputed in this case by the MS of the Hospital to depose before the Court. She has seen MLC No. 50961 of prosecutrix (name withheld) D/o Allaudin, aged 18 years female who was brought to the Hospital on 28/11/2012 for medical examination. The patient was initially examined by CMO on duty and thereafter, she was referred to SR Gynae and SR medicine. Dr. Seema has examined the patient in Gynae Department. As per MLC there is alleged history of intoxication with some stupefying agent and raped by her own father. On examination patient was conscious oriented to time, place and person. General physical examination was normal. No signs of external injuries seen. On local examination a small tear seen in posterior rim of hymen. No bleeding. Per vaginal examination hymen was torn and admitted two finger. Patient did not allow bimanual examination. Opinion finding suggestive of recent sexual contact. At present, Dr. Seema is not working now in their Hospital and her present whereabouts are not 9 of 67 10 FIR No. 308/12 PS - Jahangir Puri known as per record. She is acquainted with handwriting and signatures of Dr. Seema as she has seen her writing and signing during the course of her duties. The finding of Dr. Seema is at point 'X' to 'X' and the same is Ex. PW3/A bearing signatures of Dr. Seema at point 'A'.
PW4 - SI Ramesh Chand, who deposed that on 28/11/2012, he was working as Incharge Crime Mobile Team, North/West District. On receiving one call from PS Jahangir Puri, he went to the spot i.e. Jhuggi No. EE 249, Jahangir Puri where rape has been committed. He went there alongwith the staff. He inspected the spot i.e. Jhuggi No. EE 249, Jahangir Puri. On a cardboard where the rape has been committed two hairs were left. Both the hairs were taken and Marked as P1 & P2 and handed over to IO for seizing the same. Photographer also took the photographs of the scene of the crime as per his direction and he has prepared the Crime Team Report and handed over to the IO. The Crime Team Report is Ex. PW4/A bearing his signature at Point 'A'.
PW5 - HC Sudhir Kumar, who deposed that on 28/11/2012, he alongwith Crime Mobile Team, North/West District went to the spot 10 of 67 11 FIR No. 308/12 PS - Jahangir Puri i.e Jhuggi No. EE 249, Jahangir Puri, Delhi. He took ten photographs of the spot at the instance of IO and Crime Team InCharge SI Ramesh Chand. He has brought the negatives. The same are Ex. PW5/A1 to Ex. PW5/A10 and the positives are Ex. PW5/B1 to Ex. PW5/B10.
PW6 - Dr. Gagan, JR. Resident, Dr. BSA Hospital, Delhi, who deposed that on 13/04/2013, he was posted as JR. Resident in BJRM Hospital. On that day, one patient Allauddin S/o Mohd. Saffaruddin, Age 55 years male was brought to Hospital by the Police for medical examination. On local examination no fresh external injury seen. He prepared the MLC under the supervision of Dr. Kamakashi Narula, CMO on duty. He prepared the MLC and the same is Ex. PW6/A bearing his signature at Point 'A' and of Dr. Kamakashi Narula at Point 'B'.
PW7 - Constable Rahul, who deposed that on 18/04/2013, he was posted as Constable in PS Jahangir Puri. On that day, on the instructions of IO two sealed pullindas from the MHC(M) for depositing it in FSL Rohini vide RC No. 40/21/13. He reached in the FSL and there 11 of 67 12 FIR No. 308/12 PS - Jahangir Puri he deposited one sealed pullinda and one sealed pullinda was returned. He redeposited one sealed pullinda in the Malkhana and also deposited the acknowledgment receipt in the Malkhana. The sealed pullinda remained intact during his custody.
PW8 - Lady Constable Sheela, who deposed that on 30/11/2012, she was posted as Constable at PS Jahangir Puri. On that day, he was on duty at BJRM Hospital from 8:00 a.m. to 8:00 p.m. One girl namely Prosecutrix (name withheld) who was already admitted in BJRM Hospital was got discharged by her. She brought the Prosecutrix to Rohini Courts, where IO met her. IO produced the Prosecutrix before the Court for recording of her statement u/s 164 Cr.P.C. Again said, mother of Prosecutrix was also present in the BJRM Hospital and she accompanied her and Prosecutrix for the Court. After getting recorded the statement of Prosecutrix u/s 164 Cr.P.C., her custody was given to her mother. She does not remember the name of the IO. IO did not record her statement. She resiled from her previous statement and was also crossexamined by the Learned Addl. PP for the State.
12 of 67 13 FIR No. 308/12 PS - Jahangir Puri PW9 - Dr. Gopal Krishna, Medical Officer, BJRM Hospital, Delhi, who deposed that on 28/11/2012, he was posted as CMO at BJRM Hospital, Jahangir Puri. On that day, one girl namely Prosecutrix (name withheld) was brought to the Hospital by Police with the alleged history of being raped. Dr. Gagan conducted her preliminary medical examination under his supervision. Dr. Gagan now left the Hospital. He can identify the handwriting and signature of Dr. Gagan as this MLC was prepared by him in his presence and under his supervision. On examination of the Prosecutrix (name withheld), no external fresh injury was seen on her body at the time of examination and thereafter, she was referred to Gynae Deptt. & SR (Medicine) for further management and examination. The portion encircled 'Y' on the MLC already Ex. PW3/A is in the handwriting of Dr. Gagan and it bears his signature at Point 'B' and it bears his (PW9) name at Point 'C'. He also identifies the handwriting of Dr. Bishvanath, who had left the Hospital. At this stage, the MLC of Allauddin dated 12/04/2013 is shown to the witness. As per MLC Allauddin was brought to the Hospital with the alleged history of sexual assault. His preliminary examination was conducted by Dr. Bishvanath. On examination no fresh external injury was found on the 13 of 67 14 FIR No. 308/12 PS - Jahangir Puri person of Allauddin. The encircled portion 'X' on the MLC of Allauddin is in the handwriting of Dr. Bishvanath and it bears his signature at Point 'B'. The MLC of Allauddin is Ex. PW9/A. The patient Allauddin was referred to SR (Surgery) for further management.
PW10 - Constable Naresh Kumar, who deposed that on 06/12/2012, he was posted as Constable at PS Jahangir Puri. On that day, on the direction of IO W/SI Rakhi, he obtained one sealed box and one big envelope in sealed condition and other documents pertaining to the present case from MHC(M). He took these articles to FSL Rohini and he deposited the box and envelope in biological and chemical department vide RC No. 151/21/12 and 152/21/12. After depositing the parcels in FSL he obtained the two acknowledgments from the concerned Department and returned to PS. He handed over the acknowledgment receipts to MHC(M). During the period the parcels remained in his custody same were not tampered with.
PW11 - Lady Constable Sharmila, who deposed that on 28/11/2012, she was posted as Constable at PS Jahangir Puri. On that 14 of 67 15 FIR No. 308/12 PS - Jahangir Puri day, she was on night emergency duty. During the night at about 5:00 a.m., she alongwith SI Vineeta took the Prosecutrix (name withheld) to BJRM Hospital. Prosecutrix (name withheld) was brought to PS by the PCR. Prosecutrix (name withheld) alleged that she was being administered some intoxicating substance so in the Hospital with the help of gas pipe she vomited and some substance of her vomit was seized by the Doctors and thereafter, the Prosecutrix was referred to Gynae Deptt. for further examination. This gastric lavage (vomit) was handed over by the Doctor in sealed condition which was seized by IO vide seizure memo Ex. PW11/A bearing her signature at Point 'A'. In the meantime, IO received the call from PS regarding reaching of Crime Team at the spot i.e. premises No. EE249, Jahangir Puri, Delhi. She alongwith IO SI Vineeta went to the spot after leaving PSI Rakhi (who had also reached in the Hospital) in the Hospital with the Prosecutrix. At the spot Crime Team officials were already present. The Crime Team officials lifted hairs from the spot and these hairs were seized by IO vide seizure memo Ex. PW11/B bearing his signatures at Point 'A'. The Crime Team officials also took the photographs of the spot. Then she alongwith IO SI Vineeta again went to Hospital and found that the 15 of 67 16 FIR No. 308/12 PS - Jahangir Puri medical examination of the Prosecutrix is still not completed. After the medical examination of Prosecutrix Doctor handed over one sealed parcel alongwith sample seal which was given by her to IO. This parcel was taken into Police possession by IO vide seizure memo Ex. PW11/C bearing her signature at Point 'A'. IO recorded the statement of Prosecutrix (name withheld) at the Hospital and prepared Rukka and handed over the same to being for the registration of the case. She went to PS - Jahangir Puri and got registered the FIR. Then she again came to Hospital with the copy of FIR. The Prosecutrix was admitted in the Hospital. Constable Neetu came to Hospital and she was deputed for taking care of the Prosecutrix and she was discharged from the investigation of this case. Her statement was recorded by the IO.
PW12 - Dr. Chhitiz Mohan, Senior Resident, Surgery, BJRM Hospital, Jahangir Puri, Delhi, who deposed that on 12/04/2013 the patient Allauddin S/o Mohd. Safaruddin, Aged about 55 Years, Male was brought to the Hospital by Police with the alleged history of sexual assault. He was initially examined in the casualty by the JR Dr. Bishwanath under the supervision of the CMO, Dr. Manas Dubey vide 16 of 67 17 FIR No. 308/12 PS - Jahangir Puri MLC already Ex. PW9/A and then he was referred to him for conducting his Potency Test. He examined the patient Allauddin and opined that there is nothing to suggest that the patient is not capable of performing sexual act. His detailed notings are from Point 'Y to Y1' on the MLC already Ex. PW9/A which bears his signature at Point 'C'. He also identified the signature of Dr. Manas Dubey as he has worked with him and now left the Hospital. His signature is appearing at Point 'D' on the MLC Ex. PW9/A. PW13 - Dr. Sumit Arora, SR Medicine, BJRM Hospital, Delhi, who deposed that on 28/11/2012, one patient/Prosecutrix (name withheld) D/o Allauddin, 18 years female was brought to the Hospital by Police with alleged H/o rape/ingestion of unknown poisoning. She was initially examined in the Casualty vide MLC already Ex. PW3/A and then she was referred to SR Medicine and SR Gynae for further examination. He examined the patient/Prosecutrix (name withheld) and found there was no external injury on her body. She informed him that her father Allauddin gave her milk at about 9:00 p.m. on 27/11/2012 and thereafter, she slept after having dinner. She woke up at around 4:00 17 of 67 18 FIR No. 308/12 PS - Jahangir Puri a.m. and feeling pain in her private part and so she made PCR call. He made detailed notings from point 'D' to 'D1' on the MLC already Ex. PW3/A which bears his signatures at point 'E'. The patient was referred to SR Gynae for further examination. Inadvertently, he has mentioned the time of examination of the patient/Prosecutrix (name withheld) as 6:50 p.m. on 28/11/2012 though, he examined the patient/Prosecutrix (name withheld) at 6:50 a.m. on 28/11/2012.
PW14 - W/Constable Suman Lata, who deposed that during the night of 2728/11/2012, she was posted as Constable in CPCR. During the night at 4:53 a.m. a call was received from one lady regarding committal of rape upon her by her father at Ice Cream Factory Kai Pass, EE Block, Jhuggi No. 249, Jahangir Puri, Delhi. This information was recorded by her in the PCR Form. She has brought the attested copy of the PCR Form which is Ex. PW14/A. PW15 - Prosecutrix is the victim, who deposed some facts regarding the incident and marked her statement made to the police as 18 of 67 19 FIR No. 308/12 PS - Jahangir Puri Mark PW15/PX bearing her signatures at PointA and proved her statement recorded u/s 164 Cr.P.C. Ex. PW15/A. She identified her cloths i.e Salwar, lady shirt and brassier as Ex. P1 to Ex. P3 respectively. She resiled from her previous statement and was also crossexamined by the Learned Addl. PP for the State.
PW16 - SI Arvind, who deposed that on 01/12/2012, he was posted at PS - Jahangir Puri. On that day, he alongwith one Constable went to Ludhiana Punjab on the direction of SHO in search of accused Allauddin. They were carrying the photographs of accused Allauddin. After reaching at Ludhiana they searched for accused Allauddin at Railway Stations, Bus Stations, Hotels and other areas including the factories but all in vain. Thereafter, they came back to Delhi and IO recorded his statement in this regard.
PW17 - Ms. Roshan Nisha is the mother of the Prosecutrix, who deposed that she lives at Jhuggi No. 249, EE Block, Jahangir Puri, Delhi. She is a house wife. She is having four children which consists of 19 of 67 20 FIR No. 308/12 PS - Jahangir Puri three sons and one daughter. The names of her sons are Mohd. Ashfaq, Ali and Nabi Hassan. The name of her daughter is prosecutrix (name withheld). She is illiterate. The date, month and year she does not recollect but about 2/3 years back she had gone to her native village at Darbhanga, Bihar. Her husband and all the four children stayed back at Delhi. She received a telephonic call from her daughter/prosecutrix (name withheld) that her father has fled away (Bhag Gaya). There upon she asked her daughter/prosecutrix (name withheld) to make the call to Police at No. 100 as her father after fleeing away will go to his second wife (Woh Bhag Kar Apani Dusari Biwi Kae Pass Chala Jayaga). Thereafter, she came back to Delhi and from the persons in the neighbourhood she heard that her husband after administering pills had committed 'rape' upon her daughter. Police had come to her house and made inquiries from her. Her no statement was recorded by the Police (Identity of the accused was not disputed by the Learned Defence Counsel). She resiled from her previous statement and was also cross examined by the Learned Addl. PP for the State.
PW18 - HC Guman Singh, who deposed that on 12.04.13 he 20 of 67 21 FIR No. 308/12 PS - Jahangir Puri was posted at PS Jahangirpuri as Head Constable. On that day, he had accompanied SI Kamal Duggal to Rohini Court complex and they had gone to court room no. 103. On that day accused Allauddin present in the court today (correctly pointed out) had surrendered before the court. IO SI Kamal Duggal had moved an application for granting permission for interrogation of accused. Application was allowed by the court. IO made interrogation from the accused and after interrogation accused was arrested in the present case. Arrest memo, personal search memo and disclosure statement of accused are Ex. PW18/A, Ex. PW18/B and Ex. PW18/C respectively, all bear his signatures at points A. Thereafter, IO moved an application before the court for obtaining PC remand of the accused and one day P/C remand of accused was granted by the court. Thereafter, accused was taken to dossier cell Ashok Vihar where his dossier was got prepared. Thereafter, accused led them to Jhuggi No. 249, EE Block, Jahangirpuri, Delhi and stated that in that Jhuggi he (accused) had committed rape on her daughter 45 months back. Pointing out memo in this regard is Ex. PW18/D bearing his signature at point A. Thereafter, accused was taken to BJRM Hospital where he was got medically examined and doctor concerned had handed over two 21 of 67 22 FIR No. 308/12 PS - Jahangir Puri sealed pulandas along with sample seal which were seized by the IO vide seizure memo Ex. PW18/E which bears his signature at point A. Thereafter, they returned to the PS along with the accused. His statement was recorded by the IO.
PW19 - HC Sandeep is the MHC(M), who deposed that on 12.04.13 he was posted at PS Jahangirpuri as head constable and was working as MHC(M). On that day WSI Kamal Duggal had deposited in malkhana two pulandas sealed with the seal of 'MS BJRMS J Puri Delhi' along with the sample seal. He had deposited the same in malkhana vide entry No.3270. Photocopy of entry No. 3270 is Ex.PW19/A (OSR). On 18.04.13 exhibits of the case were sent to FSL vide RC No. 40/21 through Ct. Rahul. Photocopy of RC in this regard is Ex. PW19/B(OSR) and photocopy of acknowledgment from FSL is Ex. PW19/C (OSR). As long as the exhibits remained in his possession, same were not tempered with in any manner by him or by any other person.
PW20 - Inspector Kamal Duggal is the last Investigating Officer (IO) of the case, who deposed that on 06.04.13 she was posted at 22 of 67 23 FIR No. 308/12 PS - Jahangir Puri PS Jahangirpuri as SI. On that day, investigation of the present case was marked to her. She collected the file from MHC(R) and inspected it. Accused was still absconding. On 12.04.13, accused Allauddin present in the court (correctly pointed out) had surrendered before the court and she along with HC Guman Singh had reached court room no. 103, Rohini Courts where accused had surrendered. She had moved an application Ex.PW20/A for granting permission for interrogation of accused. Application was allowed by the court and he made interrogation from the accused and after interrogation accused was arrested in the present case. Arrest memo, personal search memo and disclosure statement of accused are already Ex. PW18/A, Ex. PW18/B and Ex. PW18/C respectively, all bearing her signatures at points X. Thereafter, she moved an application Ex. PW20/B before the court for obtaining PC remand of the accused and one day P/C remand of accused was granted by the court. Thereafter, accused was taken to dossier cell Ashok Vihar where his dossier was got prepared. Thereafter, accused led them to Jhuggi No. 249, EE Block, Jahangirpuri, Delhi and stated that in that Jhuggi he (accused) had committed rape on her daughter 45 months back. Pointing out memo in this regard is already Ex. PW18/D bearing her 23 of 67 24 FIR No. 308/12 PS - Jahangir Puri signature at point X. Thereafter, accused was taken to BJRM Hospital where he was got medically examined and doctor concerned had handed over two sealed pulandas along with sample seal which were seized by her vide seizure memo already Ex. PW18/E which bears her signature at point X. Thereafter, they returned to the PS along with the accused. She deposited the exhibits in malkhana and accused was put in lockup. On the next day, accused was produced before the court and sent to JC. On 18.04.13 exhibits were sent to FSL. She recorded statements u/s 161 Cr.P.C of the witnesses. As accused was in J/C and limitation point was involved, so she prepared the chargesheet notwithstanding the pendency of FSL result and same was filed in the court.
PW21 - Sh. Sunil Kumar, MM, North, Rohini Courts, Delhi, who deposed that on 30.11.2012, he was posted as MM at Rohini Courts, Delhi. On that day, an application was marked to him by Learned ACMM, Rohini Courts for recording the statement u/s 164 Cr.P.C. of Prosecutrix (name withheld) D/o Allauddin which is Ex.PW21/A bearing his signature at point A. On that day, the Prosecutrix was produced by the IO WSI Rakhi, who was identified by the IO vide her endorsement 24 of 67 25 FIR No. 308/12 PS - Jahangir Puri Ex.PW21/B. After putting some preliminary questions to the Prosecutrix and being satisfied that she is competent to make the statement and is making the statement voluntarily, he recorded the statement u/s 164 Cr.P.C of the Prosecutrix (name withheld) which is already Ex.PW15/A bearing his signature at point B vide detailed proceedings which are Ex.PW21/C bearing his signatures at Point A (on each page) and signature of the Prosecutrix at point B (on each page). He also gave the certificate regarding the true and correctness of the statement recorded by him which is Ex.PW21/D bearing his signature at point A. After recording the statement, IO moved an application for supply of the copy of the statement which was allowed by him vide his endorsement Ex.PW21/E bearing his signature at PointA. After recording the statement, he directed the Ahlmad to send the proceedings under sealed cover to the court concerned vide his order Ex.PW21/F bearing his signature at point A. PW22 - Sh. Navi Raja is the brother of the Prosecutrix, who deposed that two year ago he was studying in class 8th. But he does not remember the exact date, month and year. On the day of incident he 25 of 67 26 FIR No. 308/12 PS - Jahangir Puri alongwith his sister/Prosecutrix (name withheld) was residing in Jhuggi No. 249 and his father and mother was residing in Jhuggi No. 144 and his father (was) running a tea stall. He(PW22) was coming back to his home from tea stall of his father, he noticed that his sister was talking with one boy. His father asked to his sister why she was talking with boy. On this his sister told that she love him and she want to marry with him. His father refused to get marry with that boy. His sister made a call to 100 number PCR came there and after sometime local police came there and his sister got recorded her false statement. He resiled from his previous statement and was also crossexamined by the Learned Addl. PP for the State.
PW23 - Sh. Dharampal is the neighbour of the Prosecutrix, who deposed that he (lives) alongwith his wife Om Kali and alongwith his sons and daughter. On 28.11.2012 at about 4.30 AM he heard a noise of a his neighbour Prosecutrix (name withheld) for opening the door. He (PW23) opened the bolt (Kundi) of the door thereafter, he came to his home. Later on police came there and made inquiries from other as well as from him. His statement was recorded by the police.
26 of 67 27 FIR No. 308/12 PS - Jahangir Puri PW24 - W/SI Vineeta Prasad is the Initial Investigating Officer (IO) of the case, who deposed that on 28.11.2012 she was posted at PS Jahagirpuri. On that day she was called to PS Jahangir Puri. She reached the PS Jahangirpuri where Prosecutrix (name withheld) met. She alongwith Constable Sharmila took victim (name withheld) she got conducted the medical examination in BJRM Hospital. Doctor handed over gastric lavage of victim with the seal of the hospital to her and same was taken into possession vide seizure memo Ex. PW11/A bearing her signature at point B. Doctor also handed over sexual assault evidence collection kit with the seal of MS BJRM J PURI and one sample seal of MS BJRM J PURI to her and same was taken into possession vide seizure memo Ex. PW11/C bearing her signature at point B. Meanwhile PSI Rakhi reached in the hospital. She alongwith Constable Sharmila reached at the spot i.e. Jhuggi NO. 249 EEBlock, Jahangirpur where Incharge Crime Team alongwith staff was present. Incharge Crime Team inspected the spot and photographers took photographs. Incharge Crime Team handed over two envelop containing hair and both envelop were sealed with the seal of R and same were taken into possession vide seizure memo Ex. PW11/B bearing her signature at point B. Thereafter 27 of 67 28 FIR No. 308/12 PS - Jahangir Puri she alongwith Constable Sharmila came back to the hospital. She recorded the statement of victim (name withheld) which is Ex. PW24/A bearing her signature at point B and bearing the signature of Prosecutrix (name withheld) at point A. She made her endorsement on the rukka which is Ex. 24/B bearing her signature at point A and same was handed over to Ct. Sharmila for got FIR registered. Ct. Sharmila went to the PS. After some time Ct. Sharmila came back to the hospital alongwith original rukka and computerize copy of FIR and same were handed over to her. Prosecutrix was admitted in the hospital thereafter she alongwith Constable Sharmila came back to PS. Case property was deposited in Malkhana and recorded the statement of Constable Sharmila. On the instruction of the SHO case file was handed over to MHC(R).
PW25 - W/SI Shashi Lata is also the Investigating Officer (IO) of the case, who deposed that on 03.02.2013 (be read as 02.03.2013) she was posted at PS Swaroop Nagar. On that day she was called to PS Jahangirpuri and case FIR NO. 308/12 u/s 328/376 IPC was assigned to her. She had gone through the file and accused Allauddin was yet to be arrested. On 12.03.2013 she obtained the proceedings u/s 83 Cr.PC against the accused Allauddin and SI Rakhi had to be come in the court 28 of 67 29 FIR No. 308/12 PS - Jahangir Puri on 12.04.2013 but she could not come in the court. She handed over the case file to MHC(R).
PW26 SI Rakhi is also the Investigating Officer (IO) of the case, who deposed that on 29.11.2012 she was posted at PS Jahangir Puri. Present case file FIR NO. 308/12 u/s 328/376 IPC was assigned to her for further investigation of the case. She had gone through the file and she was informed that Prosecutrix was admitted in the hospital. She reached in BJRM hospital. She recorded the supplementary statement of victim (name withheld). She also recorded the statement of mother of the Prosecutrix. On 30.11.2012 she moved an application Ex. PW21/A bearing her signature at point B for getting statement recorded u/s 164 Cr. PC and she got recorded the statement of Prosecutrix which is Ex.PW15/A. She obtained the copy of the statement u/s 164 vide application Ex. PW21/E bearing her signature at point B. She alongwith the Prosecutrix, her mother and Constable Sheela visited Jhuggi No. 249, EEBlock, Jahangirpuri. At the instance of Prosecutrix she prepared the site plan which Ex. PW26/A bearing her signature at point A. She also recorded the supplementary statement of mother of the Prosecutrix 29 of 67 30 FIR No. 308/12 PS - Jahangir Puri and also recorded the statement of witnesses. On 02.12.2012 she recorded the statement of SI Arvind regarding search of the accused. On 06.12.2012 on her instructions, MHC(M) handed over the exhibits to Constable Naresh for depositing in FSL Rohini. Constable Naresh had deposited the same in FSL Rohini. After depositing he obtained the receipt on RC and acknowledgment and handed over the MHC(M). She recorded the statement of Constable Naresh and the MHC(M). On 04.01.2013 she obtained NBW of accused Allauddin as he was concealing himself to avoid arrest. Search of accused was made but he was not found and the NBW remained unexecuted. Thereafter the process u/s 82 Cr. PC was obtained against accused Allauddin and the same was got published on 05.02.2013. On 11.02.2013 she handed over the case file the MHC(R) as she was transferred to outer District.
The testimonies of the prosecution witnesses shall be dealt with in detail during the course of appreciation of evidence.
6. Statement of accused Allauddin was recorded u/s 313 Cr.P.C. wherein he pleaded innocence and false implication. Accused 30 of 67 31 FIR No. 308/12 PS - Jahangir Puri Allauddin 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. Hari Kishan, Learned Counsel for the accused and have also carefully perused the entire record.
10. The charge for the offences punishable u/s 376/328 IPC 31 of 67 32 FIR No. 308/12 PS - Jahangir Puri against the accused Allauddin is that on the intervening night of 2728/11/2012 at about 9:00/9:30 p.m. at Jhuggi No. 249, EE - Block, Jahangir Puri, within the jurisdiction of PS - Jahangir Puri, he administered some intoxicant/stupefying substance to his daughter/Prosecutrix (name withheld), aged around 18 years with intent to commit rape upon her and thereafter, in the night he committed rape upon her against her will and without her consent.
11. It is to be mentioned that as a matter of prudence, in order to avoid any little alteration in the spirit and essence of the depositions of the material witnesses, during the process of appreciation of evidence at some places their part of depositions have been reproduced, in the interest of justice.
AGE OF THE PROSECUTRIX
12. PW15 - Prosecutrix in her statement recorded in the Court on 15/04/2015 while giving her particulars has stated her age as 21 years.
Since PW15 - Prosecutrix has stated her age as 21 years on 15/04/2015 at the time of recording her evidence/statement in the Court 32 of 67 33 FIR No. 308/12 PS - Jahangir Puri and the date of alleged incident is on the intervening night of 2728/11/2012, on simple arithmetical calculation, the age of the Prosecutrix comes to 18 years, 07 months and 13 days as on the date of alleged incident on the intervening night of 2728/11/2012.
Moreover, the said factum of age of PW15 - Prosecutrix has also not been disputed by accused Allauddin. 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 PW15 - Prosecutrix was aged 18 years, 07 months and 13 days as on the date of incident on the intervening night of 2728/11/2012. MEDICAL EVIDENCE OF THE PROSECUTRIX
13. PW3 - Dr. Latika, SR, Gynae, BJRM Hospital, Delhi has deposed that she has been deputed in this case by the MS of the Hospital to depose before the Court. She has seen MLC No. 50961 of prosecutrix (name withheld) D/o Allaudin, aged 18 years female who was brought to the Hospital on 28/11/2012 for medical examination. The patient was 33 of 67 34 FIR No. 308/12 PS - Jahangir Puri initially examined by CMO on duty and thereafter, she was referred to SR Gynae and SR medicine. Dr. Seema has examined the patient in Gynae Department. As per MLC there is alleged history of intoxication with some stupefying agent and raped by her own father. On examination patient was conscious oriented to time, place and person. General physical examination was normal. No signs of external injuries seen. On local examination a small tear seen in posterior rim of hymen. No bleeding. Per vaginal examination hymen was torn and admitted two finger. Patient did not allow bimanual examination. Opinion finding suggestive of recent sexual contact. At present, Dr. Seema is not working now in their Hospital and her present whereabouts are not known as per record. She is acquainted with handwriting and signatures of Dr. Seema as she has seen her writing and signing during the course of her duties. The finding of Dr. Seema is at point 'X' to 'X' and the same is Ex. PW3/A bearing signatures of Dr. Seema at point 'A'.
There is nothing in the crossexamination of PW3 - Dr. Latika so as to impeach her creditworthiness.
PW9 - Dr. Gopal Krishna, Medical Officer, BJRM Hospital, 34 of 67 35 FIR No. 308/12 PS - Jahangir Puri Delhi has deposed that on 28/11/2012, he was posted as CMO at BJRM Hospital, Jahangir Puri. On that day, one girl namely Prosecutrix (name withheld) was brought to the Hospital by Police with the alleged history of being raped. Dr. Gagan conducted her preliminary medical examination under his supervision. Dr. Gagan now left the Hospital. He can identify the handwriting and signature of Dr. Gagan as this MLC was prepared by him in his presence and under his supervision. On examination of the Prosecutrix (name withheld), no external fresh injury was seen on her body at the time of examination and thereafter, she was referred to Gynae Deptt. & SR (Medicine) for further management and examination. The portion encircled 'Y' on the MLC already Ex. PW3/A is in the handwriting of Dr. Gagan and it bears his signature at Point 'B' and it bears his (PW9) name at Point 'C'.
PW13 - Dr. Sumit Arora, SR Medicine, BJRM Hospital, Delhi has deposed that on 28/11/2012, one patient/Prosecutrix (name withheld) D/o Allauddin, 18 years female was brought to the Hospital by Police with alleged H/o rape/ingestion of unknown poisoning. She was initially examined in the Casualty vide MLC already Ex. PW3/A and 35 of 67 36 FIR No. 308/12 PS - Jahangir Puri then she was referred to SR Medicine and SR Gynae for further examination. He examined the patient/Prosecutrix (name withheld) and found there was no external injury on her body. She informed him that her father Allauddin gave her milk at about 9:00 p.m. on 27/11/2012 and thereafter, she slept after having dinner. She woke up at around 4:00 a.m. and feeling pain in her private part and so she made PCR call. He made detailed notings from point 'D' to 'D1' on the MLC already Ex. PW3/A which bears his signatures at point 'E'. The patient was referred to SR Gynae for further examination. Inadvertently, he has mentioned the time of examination of the patient/Prosecutrix (name withheld) as 6:50 p.m. on 28/11/2012 though, he examined the patient/Prosecutrix (name withheld) at 6:50 a.m. on 28/11/2012.
Despite grant of opportunity, PW9 - Dr. Gopal Krishna and PW13 - Dr. Sumit Arora were not crossexamined on behalf of the accused.
In view of above and in the circumstances, the medical and the gynaecological examination from portion encircled 'Y', from point 'D' to 'D1' and from point 'X' to 'X' on the MLC of PW15 -
36 of 67 37 FIR No. 308/12 PS - Jahangir Puri Prosecutrix stands proved on the record.
MEDICAL EVIDENCE & VIRILITY OF THE ACCUSED ALLAUDDIN
14. PW6 - Dr. Gagan, JR. Resident, Dr. BSA Hospital, Delhi has deposed that on 13/04/2013, he was posted as JR. Resident in BJRM Hospital. On that day, one patient Allauddin S/o Mohd. Saffaruddin, Age 55 years male was brought to Hospital by the Police for medical examination. On local examination no fresh external injury seen. He prepared the MLC under the supervision of Dr. Kamakashi Narula, CMO on duty. He prepared the MLC and the same is Ex. PW6/A bearing his signature at Point 'A' and of Dr. Kamakashi Narula at Point 'B'.
PW9 - Dr. Gopal Krishna, Medical Officer, BJRM Hospital, Delhi has deposed that on 28/11/2012, he was posted as CMO at BJRM Hospital, Jahangir Puri. He also identifies the handwriting of Dr. Bishvanath, who had left the Hospital. He has seen the MLC of Allauddin dated 12/04/2013. As per MLC Allauddin was brought to the Hospital with the alleged history of sexual assault. His preliminary 37 of 67 38 FIR No. 308/12 PS - Jahangir Puri examination was conducted by Dr. Bishvanath. On examination no fresh external injury was found on the person of Allauddin. The encircled portion 'X' on the MLC of Allauddin is in the handwriting of Dr. Bishvanath and it bears his signature at Point 'B'. The MLC of Allauddin is Ex. PW9/A. The patient Allauddin was referred to SR (Surgery) for further management.
PW12 - Dr. Chhitiz Mohan, Senior Resident, Surgery, BJRM Hospital, Jahangir Puri, Delhi has deposed that on 12/04/2013 the patient Allauddin S/o Mohd. Safaruddin, Aged about 55 Years, Male was brought to the Hospital by Police with the alleged history of sexual assault. He was initially examined in the casualty by the JR Dr. Bishwanath under the supervision of the CMO, Dr. Manas Dubey vide MLC already Ex. PW9/A and then he was referred to him for conducting his Potency Test. He examined the patient Allauddin and opined that there is nothing to suggest that the patient is not capable of performing sexual act. His detailed notings are from Point 'Y to Y1' on the MLC already Ex. PW9/A which bears his signature at Point 'C'. He also identified the signature of Dr. Manas Dubey as he has worked with him and now left the Hospital. His signature is appearing at Point 'D' on the 38 of 67 39 FIR No. 308/12 PS - Jahangir Puri MLC Ex. PW9/A. Despite grant of opportunity, PW6 - Dr. Gagan, PW9 - Dr. Gopal Krishna and PW12 - Dr. Chhitiz Mohan were not cross examined on behalf of the accused.
In view of above and in the circumstances, it stands proved on the record that accused Allauddin was capable of performing sexual act.
DNA FINGER PRINTING EVIDENCE
15. It is to be mentioned that on 13.01.2016 Learned Addl. PP tendered the DNA/FSL Report dated 14.01.2015 Ex. PX1 in evidence to which the Learned Counsel for accused had 'no objection'.
As per DNA report Ex. PX1 the description of articles contained in parcel and result of analysis reads as under : DESCRIPTION OF ARTICLES CONTAINED IN PARCEL 39 of 67 40 FIR No. 308/12 PS - Jahangir Puri Parcel '1' : One sealed card board box parcel sealed with the seal of "MS BJRMS J. PURI DELHI" containing exhibits '1a', '1b', '1c', '1d', '1e', '1f', '1g', '1h', '1i', '1j', '1k', '1l', '1m', '1n', '1o', '1p' & '1q', described be of victim.
Exhibit '1a' : Cotton wool swab on a stick described as In between fingers.
Exhibit '1b' : Three nail clippings alongwith a nail cutter described as Nail scrapping.
Exhibit '1c' : Plain paper alongwith a forcep described as Debri collection.
Exhibit '1d' : Plain paper described as Debri collection. Exhibit '1e' : Cotton wool swab on a stick kept in a tube described as Body fluid collection.
Exhibit '1f' : Cotton wool swab on a stick described as Breast swab.
Exhibit '1g' : Few strands of hair along with a comb described as Combing of pubic hair.
Exhibit '1h' : Bunch of hair alongwith a comb described as Clipping of pubic hair.
Exhibit '1i' : Plain paper described as Matted pubic hair. Exhibit '1j' : Cotton wool swab on a stick kept in a tube described as Cervical mucus collection.
Exhibit '1k' : Two microslides kept in a case described as Vaginal secretion.
Exhibit '1l' : Cotton wool swab on a stick kept in a medium described as Culture.
Exhibit '1m' : One empty syringe described as Washings 40 of 67 41 FIR No. 308/12 PS - Jahangir Puri from vagina.
Exhibit '1n' : Two microslides kept in a case described as Rectal examination.
Exhibit '1o' : Two microslides kept in a case described as Oral swab.
Exhibit '1p' : Three empty tubes described as Blood collection of victim.
Exhibit '1q' : Dirty brownish liquid in a plastic container q described as Urine & Oxalate.
Parcel '2' : One sealed envelope sealed with the seal of "MS BJRMS J.PURI DELHI" containing exhibits '2a', '2b' & '2c' described as Urine & Oxalate blood vial.
Exhibit '2a' : One salwar. Exhibit '2b' : One lady's shirt. Exhibit '2c' : One brassier. Parcel '3' : One sealed cloth parcel sealed with the
seal of "R" containing exhibits '3' kept in a plastic container. Exhibit '3a' : Single strand of hair marked as 'Q1' Exhibit '3b' : Single strand of hair marked as 'Q2' FSL No. 2013/DNA3062 Parcel '1' : One sealed cloth parcel sealed with the seal of "MS BJRMS J. PURI DELHI" containing exhibit '1' kept in a plastic container.
Exhibit '1' : Gauze cloth piece having brown stains described as Blood sample of accused.
41 of 67 42 FIR No. 308/12 PS - Jahangir Puri FSL No. 2014/DNA8218 Parcel '1' : One sealed cloth parcel sealed with the seal of "MS BJRMS J. PURI DELHI" containing exhibit '1'. Exhibit '1' : Dark brown liquid kept in a tube described as Blood sample of accused.
Parcel '2' : One sealed cloth parcel sealed with the seal of "MS BJRMS J. PURI DELHI" described to contain Blood sample of accused returned unexamined.
Parcel '3' : One sealed cloth parcel sealed with the seal of "MS BJRMS J. PURI DELHI" described to contain Blood gauze of accused returned unexamined.
RESULT OF BIOLOGICAL ANALYSIS
1. Human semen was detected on exhibit '2a'.
2. Semen could not be detected on exhibits '1a', '1e', '1f', '1g', '1h', '1j', '1k', '1l', '1n', '1o', '2b', '2c', '3a' & '3b'. DNA EXAMINATION Exhibit '2a', (Salwar of victim) (vide FSL2012/DNA8505), '1' (Blood on gauze of accused) (vide FSL2013/DNA3062) & '1' (Blood sample of accused) (vide FSL 2014/DNA8218) were subjected to DNA isolation. DNA was isolated from the source of exhibits '2a' vide 42 of 67 43 FIR No. 308/12 PS - Jahangir Puri fSL2012/DNA8505, '1' (vide FSL2013/DNA3062 & '1' (vide FSL2014/DNA8218). DNA profiles were generated from the source of exhibits '2a' (vide FSL2012/DNA8505) & '1' (vide FSL2014/DNA8218) using AmpF1 STR Identifiler plus PCR amplification kit, whereas DNA profiles could not be generated from the source of exhibit '1' (vide FSL2013/DNA3062) which may be due to degradation of the sample or may due to the presence of inhibitors. STR analysis was used in each of these exhibits. Date was analysed using Gene Mapper Idx software.
RESULTS OF ANALYSIS Alleles from the source of exhibit '1' (Blood sample of accused) vide FSL2014/DNA 8218 were not accounted in the alleles from the source of exhibit '2a' (Salwar of victim) vide FSL2012/DNA8505. CONCLUSION DNA profiling (STR analysis) performed on the exhibits provided is sufficient to conclude that the DNA profiles from the source of exhibit '1' (Blood sample of accused) vide FSL2014/DNA8218 were not similar with the DNA profiles from the source of exhibit '2a' (Salwar of victim) vide FSL2012/DNA8505.
Note: (i) Parcels '1', '2' & '3' vide FSL2012/DNA8505, Parcel '1' vide FSL2013/DNA3062 & Parcel '1' vide FSL2014/DNA8218 were sufficient to conclude the results, therefore Parcels '2' & '3' vide FSL2014/DNA8218 were not examined.
(ii)Remnants of the exhibits have been sealed with the seal of 43 of 67 44 FIR No. 308/12 PS - Jahangir Puri "MCh FSL DELHI".
As per the DNA report Ex. PX1, with regard to the description of the articles contained in the parcels, it is noticed that Parcel No. 1 & 2 belong to the Prosecutrix which were seized vide seizure memo Ex. PW11/C dated 28.11.2012, Parcel No. 3 was seized by the Crime Team from the spot vide seizure memo Ex. PW11/B dated 18.11.2012, Parcel No. 1 (FSL No. 2013/DNA3062) belongs to the accused which was seized vide seizure memo Ex. PW18/E and Parcel No. 1, 2 & 3 (FSL No. 2014/DNA8218) belong to the accused which were seized by the order of the Court dated 05.11.2014.
On careful perusal and analysis of the DNA report Ex. PX1, it clearly shows that Exhibit '2a', (Salwar of victim) (vide FSL2012/DNA8505), '1' (Blood on gauze of accused) (vide FSL2013/DNA3062) & '1' (Blood sample of accused) (vide FSL 2014/DNA8218) were subjected to DNA isolation. DNA was isolated from the source of exhibits '2a' vide fSL2012/DNA8505, '1' (vide FSL2013/DNA3062 & '1' (vide FSL2014/DNA8218). DNA profiles 44 of 67 45 FIR No. 308/12 PS - Jahangir Puri were generated from the source of exhibits '2a' (vide FSL2012/DNA8505) & '1' (vide FSL2014/DNA8218) using AmpF1 STR Identifiler plus PCR amplification kit, whereas DNA profiles could not be generated from the source of exhibit '1' (vide FSL2013/DNA3062) which may be due to degradation of the sample or may due to the presence of inhibitors. Alleles from the source of exhibit '1' (Blood sample of accused) vide FSL2014/DNA 8218 were not accounted in the alleles from the source of exhibit '2a' (Salwar of victim) vide FSL2012/DNA8505. DNA profiling (STR analysis) performed on the exhibits provided is sufficient to conclude that the DNA profiles from the source of exhibit '1' (Blood sample of accused) vide FSL2014/DNA8218 were not similar with the DNA profiles from the source of exhibit '2a' (Salwar of victim) vide FSL2012/DNA8505.
16. Now let the testimony of PW15 Prosecutrix be perused and analysed.
PW15 Prosecutrix, in her examinationinchief has deposed which is reproduced and reads as under : 45 of 67 46 FIR No. 308/12 PS - Jahangir Puri "Prior to my marriage with Mohd. Mukeem (which was performed about 1 ½ years back), I used to reside at Jhuggi No. 249, EE Block, Jahangir Puri, Delhi, with my parents and with my three brothers. One brother Mohd. Asfaq is elder to me and my two brothers are younger to me. Nothing wrong happened with me. Prior to my marriage I was having friendship with Mohd. Sahid and I wanted to marry him but my father was against the same. My mother was also against my marriage with Sahid. When I told my father that I would perform marriage with Mohd. Sahid, on which my father gave beatings to me. I do not know the date and month when my father gave beatings to me then I insisted to marry with Mohd. Sahid. My father asked me not to talk with Mohd. Sahid even on telephone. On one day during night time I was talking with Mohd. Sahid on phone, my father saw me while talking telephonically with Mohd. Sahid. He gave beatings to me. I made call at No. 100 and informed Police that my father was doing 'jabardasti' with me, however, there was no such type of any incident. 'Jabardasti' I mean that my father was forcefully making physical relations with me, however, he had not done any type of jabardasti upon me but gave only beatings to me. After about 510 minutes of making of PCR call Police reached to my house. Police took me to PS. No other family member accompanying (accompanied) me to PS. At that time my mother was in Village Distt. Darbhanga, Bihar. My father had fled away from the house after giving beatings to me as I told my father that I would make call at No. 100. In the morning I told Police officials that I would not make any complaint against my father and requested them to let me go, however, Police obtained my signatures on blank papers.
At this stage, the statement of the witness dated 28/11/2012 is shown to the witness and after seeing the same she admits her signatures at Point 'A'. The statement is Mark PW15/PX. Vol. this paper 46 of 67 47 FIR No. 308/12 PS - Jahangir Puri was blank at that time.
Police also took me to BJRM hospital. I do not know whether my medical examination was conducted by the Doctor or not. My wearing clothes were taken by Police. I was also brought to the Court by Police for recording of my statement before Ld. MM. During my statement recorded by Learned MM I have stated that my father committed 'jabardasti' (rape) upon me as Police officials asked me to state so before Ld. MM.
At this stage, a sealed envelope sealed with the seal of 'DS' lying on judicial file is opened after breaking the seal from which the proceedings conducted u/s 164 Cr.P.C. are taken out and the statement of the witness is shown to her. After seeing the statement witness states that her signatures are appearing at Point 'A'. The statement of the witness recorded u/s 164 Cr.P.C is Ex. PW15/A. I can identify accused Allauddin, if shown to me. At this stage, the wooden partition has been removed. Accused Allauddin is present in the Court (correctly identified).
The wooden partition now has been restored to its original position.
Accused Allauddin is my father, who gave beatings to me. I can identify my clothes which were seized by Police, if shown to me.
At this stage, MHC(M) has produced parcel No. 2 bearing the seal of FSL. The parcel No. 2 is opened, from which the exhibit no. 2a, 2b and 2c are taken out and shown to the witness which are one salwar, one lady shirt and one brassier. Witness identifies these cloths are same which were worn by her at the time of commission of offence 47 of 67 48 FIR No. 308/12 PS - Jahangir Puri and were taken from her by the Doctor in the Hospital and the same are Ex. P1 to Ex. P3 respectively."
From the aforesaid narration of PW15 - Prosecutrix, it is clear that prior to her marriage with Mohd. Mukeem (which was performed about 1 ½ years back), she used to reside at Jhuggi No. 249, EE Block, Jahangir Puri, Delhi, with her parents and with her three brothers. One brother Mohd. Asfaq is elder to her and her two brothers are younger to her. Nothing wrong happened with her. Prior to her marriage she was having friendship with Mohd. Sahid and she wanted to marry him but her father was against the same. Her mother was also against her marriage with Sahid. When she told her father that she would perform marriage with Mohd. Sahid, on which her father gave beatings to her. She does not know the date and month when her father gave beatings to her then she insisted to marry with Mohd. Sahid. Her father asked her not to talk with Mohd. Sahid even on telephone. On one day during night time she was talking with Mohd. Sahid on phone, her father saw her while talking telephonically with Mohd. Sahid. He gave beatings to her. She made call at No. 100 and informed Police that her father was doing 'jabardasti' with her, however, there was no such type 48 of 67 49 FIR No. 308/12 PS - Jahangir Puri of any incident. 'Jabardasti' she mean that her father was forcefully making physical relations with her, however, he had not done any type of jabardasti upon her but gave only beatings to her. After about 510 minutes of making of PCR call Police reached to her house. Police took her to PS. No other family member accompanied her to PS. At that time her mother was in Village Distt. Darbhanga, Bihar. Her father had fled away from the house after giving beatings to her as she told her father that she would make call at No. 100. In the morning she told Police officials that she would not make any complaint against her father and requested them to let her go, however, Police obtained her signatures on blank papers. She admitted her signatures at Point 'A' on the statement Mark PW15/PX. Vol. this paper was blank at that time. Police also took her to BJRM Hospital. She does not know whether her medical examination was conducted by the Doctor or not. Her wearing clothes were taken by Police. She was also brought to the Court by Police for recording of her statement before Learned MM. During her statement recorded by Learned MM, she has stated that her father committed 'jabardasti' (rape) upon her as Police officials asked her to state so before Learned MM. She identified her signatures on the statement u/s 49 of 67 50 FIR No. 308/12 PS - Jahangir Puri 164 Cr.P.C. Ex. PW15/A. She correctly identified accused Allauddin present in the Court. Accused Allauddin is her father, who gave beatings to her. She also identified her clothes i.e. one salwar, one lady shirt and one brassier as exhibit nos. 2a, 2b and 2c and stated that these cloths are same which were worn by her at the time of commission of offence and were taken from her by the Doctor in the Hospital and the same are Ex. P1 to Ex. P3 respectively.
PW15 - Prosecutrix was also crossexamined by the Learned Addl. PP for the State which is reproduced and reads as under : "Q. You have deposed that your father gave beatings to you and then you made PCR call. Why you informed Police that your father had committed rape upon you at the time of making PCR call? Ans. I informed Police that my father raped me as my father was against my marriage with Mohd. Sahid and I wanted to implicate him in a rape case.
It is wrong to suggest that my father had committed rape upon me so I made PCR call or that I am deposing falsely that my father Allauddin had only given beatings to me in order to save him.
When I was taken to BJRM Hospital by Police I did not inform anything to the Doctor. I did not inform the Doctor that my father after administering some intoxicating substance to me (Kuch 50 of 67 51 FIR No. 308/12 PS - Jahangir Puri Nashe Ki Cheej De Kar) had committed 'galat kaam' with me. It is wrong to suggest that I informed the Doctor that my father after administering some intoxicating substance to me (Kuch Nashe Ki Cheej De Kar) had committed 'galat kaam' with me, at the time of my medical examination. I did not inform the Doctor regarding feeling of pain in my private parts. It is wrong to suggest that I inform the Doctor regarding feeling of pain in my private parts. My two minor younger brothers (Do Chotte Bahi) were present in the house at the time I was giving (given) beatings by my father. My elder brother stays outside at work (Kaam Pe Bahar Rehta Hai). I had screamed (Chike Chillai) at the time I was giving beatings by my father. There were many jhuggies also adjacent to my jhuggi. On hearing my screams one neighbour who lives beside our jhuggi came there. When the said neighbour came by that time my father Allauddin had already walked out of the jhuggi (Bahar Nikal Chukai Thai). My father had not walked out of the jhuggi after closing its door and bolting it. It is wrong to suggest that my father had walked out of the jhuggi after closing its door and bolting it or that the bolt (kundi) of the jhuggi was opened by the neighbour, who had come after hearing my screams. I was knowing Mohd. Sahid for about 34 months (Teen Char Mahine Se Janati Thee). Mohd. Sahid was residing in Azad Pur, Delhi. I came to know Mohd. Sahid as when I go to School, who used to found present at the School gate (School Kai Gate Par Milta Tha). I did not marry Mohd. Sahid after my father Allauddin had gone to jail in this case. It is wrong to suggest that I was not having any friendship with Mohd. Sahid or that due to my friendship with Mohd. Sahid my father Allauddin was angry with me or that due to my friendship with Mohd. Sahid my father Allauddin had given beatings to me. It is wrong to suggest that I was not having any friendship with Mohd. Sahid and for this reason I have not performed the marriage with 51 of 67 52 FIR No. 308/12 PS - Jahangir Puri Mohd. Sahid. It is wrong to suggest that my signatures were not obtained by the Police on blank papers or that I had signed at Point 'A' on Mark PW15/PX after giving my statement which was recorded by the Police and was read over to me.
I had not stated to the Police that on 28/11/2012 at about 9:009:30 p.m. my father had given milk to me for drinking and after drinking the same I became unconscious. (Confronted with the statement Mark PW15/PX, where it is so recorded). It is wrong to suggest that I had stated to the police that on 28/11/2012 at about 9:009:30 p.m. my father had given milk to me for drinking and after drinking the same I became unconscious.
I had not stated to the Police that at about 4:00 a.m. when I woke up I found that my father was committing rape upon me and was doing 'badtmiji' with me after opening my salwar. (Confronted with the statement Mark PW15/PX, where it is so recorded). It is wrong to suggest that at about 4:00 a.m. when I woke up I found that my father was committing rape upon me and was doing 'badtmiji' with me after opening my salwar.
I had not stated to the Police that I made call to my mother and thereafter my father lifted my younger brother, who was sleeping in another room and made him lie with me and thereafter, he fled away after bolting the door of jhuggi from outside. (Confronted with the statement Mark PW15/PX, where it is so recorded). It is wrong to suggest that I made call to my mother and thereafter my father lifted my younger brother, who was sleeping in another room and made him lie with me and thereafter, he fled away after bolting the door of jhuggi from outside.
At this stage, the statement dated 28/11/2012 Mark PW15/PX is read over to the witness, who denies of having made any 52 of 67 53 FIR No. 308/12 PS - Jahangir Puri such statement to the Police.
It is wrong to suggest that the statement Mark PW15/PX was made by me to the Police or that I am denying of having made such statement to the Police in order to save accused Allauddin, who is my father.
I had not stated to the Ld. MM that Police has pressurized me to make statement u/s 164 Cr.P.C. at their instance. It is wrong to suggest that I did not state about the pressure of police to Ld. MM as there was no such pressure upon me by the Police to make the statement at their instance. It is wrong to suggest that the statement made by me u/s 164 Cr.P.C. is my voluntarily statement or that I am deposing falsely in this regard.
Q. Did you state to the Police the name of the neighbour, who had opened the kundi of the jhuggi?
Ans. I do not know the name of the neighbour, however, I know the name of his daughter. Vol. the neighbour had come on hearing my scream and the door of the jhuggi was already open.
It is wrong to suggest that the name of the neighbour was Dharampal, who had come at my jhuggi after hearing my scream. No site plan was prepared by the Police in my presence.
At this stage, the statement of the witness recorded u/s 161 Cr.P.C. dated 30/11/2012 is read over to the witness, who denies of having made any such statement to the Police. The statement is Mark PW15/PX1.
It is wrong to suggest that I had made the statement Mark PW15/PX1 to the Police or that I have deposed falsely in this regard in order to save accused Allauddin, who is my father. It is wrong to suggest that the matter has been settled/compromised with the accused or that I have been won over by the accused. It is wrong to suggest that I am 53 of 67 54 FIR No. 308/12 PS - Jahangir Puri concealing the true and actual facts or that I am making the statement at the instance of my mother. 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 : "I am sixth class passed. My two younger brothers are presently aged about 17 Years and 19 Years. I had refused to the Police for not lodging any complaint. No statement of any family members or of any locality person was recorded by the Police in my presence. Vol. I had heard that the statement of one neighbour Dharampal was recorded by the Police. It is correct that I was tutored by the police before I made the statement u/s 164 Cr.P.C. I had refused for my medical examination at the hospital but despite my refusal my medical examination was got conducted by the Police. It is correct that the present case was lodged by me against accused Allauddin my father on the asking of Mohd. Sahid. It is correct that Mohd. Sahid has not married with me for the reason I have falsely implicated my father in the case and that Mohd. Sahid had also told me that in future I may also falsely implicate him in the case. I am addicted to Chand Tara Gul, gutaka etc. for the last two/three years. It is correct that my father had made me understand calmly not to have any friendship with Mohd. Sahid. Presently I am married with Mohd. Mukeem. It is correct that I have performed the marriage with Mohd. Mukeem of my own will without the involvement of my brothers and my father. It is correct that my father had also advised me several times not to do the intoxication of gutakas etc."
54 of 67 55 FIR No. 308/12 PS - Jahangir Puri On analysing the entire testimony of PW15 - Prosecutrix it is clearly indicated that during her examinationinchief she has specifically deposed that, "Nothing wrong happened with me. Prior to my marriage I was having friendship with Mohd. Sahid and I wanted to marry him but my father was against the same." "I made call at No. 100 and informed Police that my father was doing 'jabardasti' with me, however, there was no such type of any incident. 'Jabardasti' I mean that my father was forcefully making physical relations with me, however, he had not done any type of jabardasti upon me but gave only beatings to me." Prosecutrix has also not supported the prosecution in her statement u/s 164 Cr.P.C. Ex. PW15/A when she deposed that, "During my statement recorded by Ld. MM I have stated that my father committed 'jabardasti' (rape) upon me as Police officials asked me to state so before Ld. MM." During her crossexamination by Learned Addl. PP for the State she has specifically deposed that : "Q. You have deposed that your father gave beatings to you and then you made PCR call. Why you informed Police that your father had committed rape upon you at the time of making PCR call? Ans. I informed Police that my father raped me as my father was against 55 of 67 56 FIR No. 308/12 PS - Jahangir Puri my marriage with Mohd. Sahid and I wanted to implicate him in a rape case."
PW15 - Prosecutrix negated the suggestions put to her by the Learned Addl. PP for the State that her father had committed rape upon her so she made PCR call or that she is deposing falsely that her father Allauddin had only given beatings to her in order to save him or that she informed the Doctor that her father after administering some intoxicating substance to her (Kuch Nashe Ki Cheej De Kar) had committed 'galat kaam' with her, at the time of her medical examination or that she inform the Doctor regarding feeling of pain in her private parts or that her father had walked out of the jhuggi after closing its door and bolting it or that the bolt (kundi) of the jhuggi was opened by the neighbour, who had come after hearing her screams or that she was not having any friendship with Mohd. Sahid or that due to her friendship with Mohd. Sahid her father Allauddin was angry with her or that due to her friendship with Mohd. Sahid her father Allauddin had given beatings to her or that she was not having any friendship with Mohd. Sahid and for this reason she had not performed the marriage with Mohd. Sahid or that her signatures were not obtained by the Police on blank papers or that she had signed at Point 'A' on Mark PW15/PX after giving her 56 of 67 57 FIR No. 308/12 PS - Jahangir Puri statement which was recorded by the Police and was read over to her or that she had stated to the Police that on 28/11/2012 at about 9:009:30 p.m. her father had given milk to her for drinking and after drinking the same she became unconscious or that at about 4:00 a.m. when she woke up she found that her father was committing rape upon her and was doing 'badtmiji' with her after opening her salwar or that she made call to her mother and thereafter her father lifted her younger brother, who was sleeping in another room and made him lie with her and thereafter, he fled away after bolting the door of jhuggi from outside or that the statement Mark PW15/PX was made by her to the Police or that she is denying of having made such statement to the Police in order to save accused Allauddin, who is her father or that she did not state about the pressure of Police to Ld. MM as there was no such pressure upon her by the Police to make the statement at their instance or that the statement made by her u/s 164 Cr.P.C. is her voluntarily statement or that she is deposing falsely in this regard or that the name of the neighbour was Dharampal, who had come at her jhuggi after hearing her scream or that she had made the statement Mark PW15/PX1 to the Police or that she has deposed falsely in this regard in order to save accused Allauddin, 57 of 67 58 FIR No. 308/12 PS - Jahangir Puri who is her father or that the matter has been settled/compromised with the accused or that she has been won over by the accused or that she is concealing the true and actual facts or that she is making the statement at the instance of her mother or that she is deposing falsely.
As discussed hereinbefore, PW15 - Prosecutrix has been found to be aged around 19 years, from the testimony of PW15 - prosecutrix, nothing is being indicated that on the intervening night of 2728/11/2012 at about 9:00/9:30 p.m. at Jhuggi No. 249, EE - Block, Jahangir Puri, accused Allauddin administered some intoxicant/ stupefying substance to her with intent to commit rape upon her or that thereafter, in the night he committed rape upon her against her will and without her consent. Even the DNA Report Ex. PX1 as reproduced, discussed and analysed hereinbefore also does not come to the rescue of the prosecution case.
Now, let the testimony of PW17 - Ms. Roshan Nisha, mother of the prosecutrix be perused and analysed.
58 of 67 59 FIR No. 308/12 PS - Jahangir Puri PW17 - Ms. Roshan Nisha is the mother of the Prosecutrix, who in her examinationinchief has deposed that she lives at Jhuggi No. 249, EE Block, Jahangir Puri, Delhi. She is a house wife. She is having four children which consists of three sons and one daughter. The names of her sons are Mohd. Ashfaq, Ali and Nabi Hassan. The name of her daughter is Prosecutrix (name withheld). She is illiterate. The date, month and year she does not recollect but about 2/3 years back she had gone to her native village at Darbhanga, Bihar. Her husband and all the four children stayed back at Delhi. She received a telephonic call from her daughter/Prosecutrix (name withheld) that her father has fled away (Bhag Gaya). There upon she asked her daughter/Prosecutrix (name withheld) to make the call to Police at No. 100 as her father after fleeing away will go to his second wife (Woh Bhag Kar Apani Dusari Biwi Kae Pass Chala Jayaga). Thereafter, she came back to Delhi and from the persons in the neighbourhood she heard that her husband after administering pills had committed 'rape' upon her daughter. Police had come to her house and made inquiries from her. Her no statement was recorded by the Police (Identity of the accused was not disputed by the Learned Defence Counsel).
59 of 67 60 FIR No. 308/12 PS - Jahangir Puri PW17 - Ms. Roshan Nisha was also crossexamined by the Learned Addl. PP for the State which is reproduced and reads as under : "I used to do the work of selling Ice Cream in Delhi. At this stage, the statement dated 29/11/2012 is shown and read over to the witness, who denies of having made any such statement to the Police. The said statement is Mark PW17/PX.
I had not stated in my statement that on 28/11/2012 at about 4:00 a.m. I received a call from my husband Allauddin, who stated that he is in the process of fleeing away (Kehnae Laga Ki Mai To Bhag Raha Hoon) and when I asked him the reason for his fleeing away he did not utter/mince any word and thereafter, my daughter talked to me, who said that papa is not allowing me to sleep and making me awake (Sonae Nahi De Rahae Hai Aur Mujhe Utha Raha Hai) and thereafter, my husband had taken the phone from my daughter/Prosecutrix (name withheld) and started saying that the condition of Prosecutrix (name withheld) is not well and she is sleeping. (Confronted with the statement from Portion 'A to A' of Mark PW17/PX, where it is so recorded). It is wrong to suggest that I had stated in my statement that on 28/11/2012 at about 4:00 a.m. I received a call from my husband Allauddin, who stated that he is in the process of fleeing away (Kehnae Laga Ki Mai To Bhag Raha Hoon) and when I asked him the reason for his fleeing away he did not utter/mince any word and thereafter, my daughter talked to me, who said that papa is not allowing me to sleep and making me awake (Sonae Nahi De Rahae Hai Aur Mujhe Utha Raha Hai) and thereafter, my husband had taken 60 of 67 61 FIR No. 308/12 PS - Jahangir Puri the phone from my daughter/Prosecutrix (name withheld) and started saying that the condition of Prosecutrix (name withheld) is not well and she is sleeping. I had not stated in my statement that after sometime my daughter/Prosecutrix (name withheld) made a call to me from another number wherein she stated that in the night her father after administering intoxicating medicines has committed 'galat kaam' upon her and he after bolting the door from outside had fled away and thereafter I asked my daughter/Prosecutrix (name withheld) to make a call to Police at No.
100. (Confronted with the statement from Portion 'B to B' of Mark PW17/PX, where it is so recorded). It is wrong to suggest that I had stated in my statement that after sometime my daughter/Prosecutrix (name withheld) made a call to me from another number wherein she stated that in the night her father after administering intoxicating medicines has committed 'galat kaam' upon her and he after bolting the door from outside had fled away and thereafter I asked my daughter/Prosecutrix (name withheld) to make a call to Police at No.
100. It is wrong to suggest that I am not deposing true facts against the accused being his wife or that since my daughter had already married I am not deposing true facts in the court in order to save the accused from Penal punishment or that I have been won over by the accused. It is further wrong to suggest that I am deposing falsely."
PW17 - Ms. Roshan Nisha was not crossexamined on behalf of accused despite grant of opportunity.
61 of 67 62 FIR No. 308/12 PS - Jahangir Puri On careful perusal and analysis of the testimony of PW17 - Ms. Roshan Nisha, mother of the Prosecutrix, it is found that nothing material has come out in her testimony so as to advance the case of the prosecution on the core spectrum of the crime. She negated the suggestions, as were put to her by the Learned Addl. PP, that she had stated in her statement that on 28/11/2012 at about 4:00 a.m. she received a call from her husband Allauddin, who stated that he is in the process of fleeing away (Kehnae Laga Ki Mai To Bhag Raha Hoon) and when she asked him the reason for his fleeing away he did not utter/mince any word and thereafter, her daughter talked to her, who said that papa is not allowing her to sleep and making her awake (Sonae Nahi De Rahae Hai Aur Mujhe Utha Raha Hai) and thereafter, her husband had taken the phone from her daughter/Prosecutrix (name withheld) and started saying that the condition of Prosecutrix (name withheld) is not well and she is sleeping or that she had stated in her statement that after sometime her daughter/Prosecutrix (name withheld) made a call to her from another number wherein she stated that in the night her father after administering intoxicating medicines has committed 'galat kaam' upon her and he after bolting the door from outside had fled away and 62 of 67 63 FIR No. 308/12 PS - Jahangir Puri thereafter she asked her daughter/Prosecutrix (name withheld) to make a call to Police at No. 100 or that she is not deposing true facts against the accused being his wife or that since her daughter had already married she is not deposing true facts in the Court in order to save the accused from Penal punishment or that she has been won over by the accused or that she is deposing falsely.
Now let the testimony of PW22 Sh. Navi Raja, brother of the Prosecutrix be perused and analysed.
PW22 Sh. Navi Raja is the brother of the Prosecutrix, who in his examination inchief has deposed that two year ago he was studying in class 8th. But he does not remember the exact date, month and year. On the day of incident he alongwith his sister/Prosecutrix (name withheld) was residing in Jhuggi No. 249 and his father and mother was residing in Jhuggi No. 144 and his father (was) running a tea stall. He(PW22) was coming back to his home from tea stall of his father, he noticed that his sister was talking with one boy. His 63 of 67 64 FIR No. 308/12 PS - Jahangir Puri father asked to his sister why she was talking with boy. On this his sister told that she love him and she want to marry with him. His father refused to get marry with that boy. His sister made a call to 100 number PCR came there and after sometime local police came there and his sister got recorded her false statement.
PW22 Sh. Navi Raja was also crossexamined by the Ld. Addl. PP for the State as he was resiling from his previous statement which is reproduced and reads as under: "My statement was not recorded by the police. Statement dated 30.11.2012 Mark PW22/A is read over and explained to the witness. Witness denies that he had given such a statement to the police. It is wrong to suggest that I had stated that on 28.11.2012 at about 4.00 AM I got up after hearing the cries of my sister and my sister asked me to make a call to my mother meanwhile my father bolted the door from outside and run away from there. I alongwith my sister raised alarm the persons who were jocking there open the door from outside. I went to Jhuggi of my neighbours and made a call to the PCR. I also made a call to my mother and my sister talked to my mother on phone. Confronted with the portion A to A1 of Mark PW22/A where it is so recorded. It is wrong to suggest that I am deposing falsely to save the accused being the son of accused".
64 of 67 65 FIR No. 308/12 PS - Jahangir Puri PW22 - Sh. Navi Raja was not crossexamined on behalf of the accused despite grant of opportunity.
On careful perusal and analyses of the testimony of PW22 Sh. Navi Raja, brother of the Prosecutrix, it is found that nothing material has come out in his testimony so as to advance the case of the prosecution on the core spectrum of the crime. He negated the suggestions, as were put to him by the Learned Addl. PP that he had stated that on 28.11.2012 at about 4.00 AM he got up after hearing the cries of his sister and his sister asked him to make a call to his mother meanwhile his father bolted the door from outside and run away from there. He alongwith his sister raised alarm the persons who were jocking there open the door from outside. He went to Jhuggi of his neighbours and made a call to the PCR. He also made a call to his mother and his sister talked to his mother on phone or that he is deposing falsely to save the accused being the son of accused.
17. In view of above and in the circumstances, I find that the 65 of 67 66 FIR No. 308/12 PS - Jahangir Puri prosecution has failed to prove its case beyond reasonable doubt against accused Allauddin. The hostility of PW15 - Prosecutrix and that of PW17 - Roshan Nisha, her mother and that of PW22 Sh. Navi Raja, her brother has knocked out the bottom of the case of the prosecution. There is nothing on record to indicate that on the intervening night of 2728/11/2012 at about 9:00/9:30 p.m. at Jhuggi No. 249, EE - Block, Jahangir Puri, accused Allauddin administered some intoxicant/ stupefying substance to PW15 - Prosecutrix, aged around 19 years with intent to commit rape upon her or that thereafter, in the night he committed rape upon her against her will and without her consent.
I accordingly, acquit accused Allauddin for the offences punishable u/s 376/328 IPC.
18. In view of above discussion, I am of the considered opinion that as far as the involvement of accused Allauddin in the commission of offences punishable u/s 376/328 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 66 of 67 67 FIR No. 308/12 PS - Jahangir Puri the accused Allauddin beyond shadows of all reasonable doubts and there is a room for hypothesis, consistent with that of innocence of accused Allauddin. I, therefore, acquit accused Allauddin for the offences punishable u/s 376/328 IPC after giving him the benefit of doubt. Accused Allauddin is on bail. However, u/s 437A Cr.P.C accused Allauddin shall furnish a personal bond in the sum of Rs. 20,000/ with a surety in the like amount and the accused and the surety shall also require to annex their latest passport size photographs alongwith their latest residential proof (vide State Vs. Virender Yadav & Anr. 2014 1 AD (DELHI) 389) which shall remain in force for six months and he to appear before the Hon'ble Higher Court as and when such Court issues Notice in respect of any Petition filed against this judgment. Announced in the open Court (MAHESH CHANDER GUPTA) on 29th Day of January, 2016 Additional Sessions Judge Special Fast Track Court (North District), Rohini, Delhi 67 of 67