Delhi District Court
State vs . Jitender on 20 August, 2015
1
FIR No. 01/13
PS - Shahbad Dairy
IN THE COURT OF SH. MAHESH CHANDER GUPTA :
ADDITIONAL SESSIONS JUDGE : SPECIAL FAST TRACK
COURT : NORTH DISTRICT : ROHINI : DELHI
SESSIONS CASE NO. : 246/13
Unique ID No. : 02404R0146892013
State Vs. Jitender
S/o Shri Ram Prasad
R/o B - 382, Shahbad Dairy,
Delhi.
FIR No. : 01/13
Police Station : Shahbad Dairy
Under Sections : 376/312 IPC
Date of committal to session Court : 05/06/2013
Date on which judgment reserved : 24/07/2015
Date on which judgment announced : 20/08/2015
JUDGMENT
1. Briefly stated the case of the prosecution as unfolded by the report under section 173 Cr.P.C. is as under : 1 of 31 2 FIR No. 01/13 PS - Shahbad Dairy That on receipt of a call in connection with DD No. 30A, dated 02/01/2013 SI Anju Dahiya alongwith SI Sonu and Constable Anil reached at the spot near F 494, Prahlad Pur, Delhi, where no one was found present, thereupon call was made on the received mobile phone No. 9311106321 and was told of the call being made by the police, on which the girl/prosecutrix told her name (withheld being a case u/s 376 IPC) and she said that presently she will not meet the Police and will give her statement by coming to the Police Station. On which, SI Anju Dahiya returned back to the Police Station. On 03/01/2013, prosecutrix (name withheld) D/o Sh. Ralush, R/o F 494, Prahlad Pur, Divider Road, Dadar Mohalla Wali Gali, Delhi, permanent address Village Nauhati, PS Dumri, District Gumla, Jharkhand, came to the Police Station in the morning and made the statement in the presence of NGO representative Nazma Khan which is to the effect that, she lives alone on rent at the above address for the last three years and works as a nurse in a private clinic, Dr. Rachna Clinic, situated in Sector 15, Rohini. In August, 2011 she used to go to learn computer course in Shahbad Dairy, there itself Jitender was having the Railway Ticket Booking shop. She used to go to his shop for ticket booking and Jitender made acquaintance 2 of 31 3 FIR No. 01/13 PS - Shahbad Dairy with her. One day Jitender proposed for marriage to her on which she told that she is a divorcee and is also having a son, who is living in the village with her previous husband. On which Jitender said, he has no concerned/objection with all this and he wants to marry with her. After this Jitender started meeting with her and started pressuring her for making physical relations but he did not perform the marriage and on the pretext of marriage he kept on making physical relations with her and during this she became pregnant, but Jitender got her aborted without her consent by giving her medicines. In this manner Jitender on the false pretext of performing marriage with her made many a times (kai baar) physical relations with her and by getting her aborted without her consent has committed Galat with her (Mai Pata Uprokat Par Pichle Qareeb Teen Saal Se Akeli Kiraye Par Reh Rahi Hoon Aur Sector - 15, Rohini Mei Sthit Ek Private Clinic Mei Dr. Rachna Clinic Mein Bataur Nurse Kaam Karti Hoon. August 2011 Mei Main Shahbad Dairy Mei Computer Course Seekhne Jati Thi Jo Wahan Par Hi Jitender S/o Ram Prasad R/o B - 382, Shahbad Dairy Ke Railway Ticket Book Karne Ki Dukaan Hai. Jo Mai Uski Dukaan Par Ticket Book Karane Ke Liye Jaya Karti Thi Jo Jitender Ne Mujhse Jaan Pehchan Badhai. Ek Din Jitender 3 of 31 4 FIR No. 01/13 PS - Shahbad Dairy Ne Mujhe Shadi Ke Liye Propose Kiya Jo Maine Usko Bataya Ki Mai Talaq Shuda Hoon Aur Mera Ek Beta Bhi Hai Jo Mere Pehle Pati Ke Paas Uske Gaon Mei Hi Rehta Hai. Jo Jitender Ne Kaha Ki Use In Baaton Se Koi Aitraaz Nahi Hai Aur Weh Mujhse Shadi Karna Chahta Hai. Jo Iske Baad Jitender Mujhse Milne Laga Aur Sharirik Sambandh Banane Ke Liye Dabav Dalne Laga Parantu Shadi Nahi Ki Aur Shadi Ka Pralobhan De Kar Mujhse Sharirik Sambandh Banata Raha Tatha Issi Dauraan Mera Garbh Bhi Thehra Lekin Jitender Mujhe Dawai De Kar Mera Garbh Meri Marzi Ke Bina Girva Deta Tha Aur Is Tarah Jitender Ne Mujhse Shadi Karne Ka Jhutha Pralobhan De Kar Mujhse Kai Baar Sharirik Sambandh Bana Kar Tatha Meri Marzi Ke Khilaaf Mera Garbh Girva Kar Mere Saath Galat Kiya Hai). Appropriate legal action be taken against Jitender. She has read and heard her statement and is correct. On the basis of the statement, from the circumstances and the DD entry, finding that offences u/s 376/312 IPC appeared to have been committed, the case was got registered and the investigation was proceeded with by SI Anju Dahiya. During the course of investigation prosecutrix was got medically examined vide MLC No. 3213 but the prosecutrix refused for her any examination. On the pointing out of the 4 of 31 5 FIR No. 01/13 PS - Shahbad Dairy prosecutrix site plan was prepared. On the identification of the prosecutrix accused Jitender was arrested and his personal search was conducted. The pointing out memo was prepared at the instance of the accused. His disclosure statement was recorded. His medical examination was got conducted vide MLC No. 39/13 from MV hospital and the sealed exhibits handed over by the doctor after his examination were taken into Police possession and were deposited in the Malkhana. Statement of the prosecutrix u/s 164 Cr.P.C. was got recorded. Statements of the witnesses were recorded u/s 161 Cr.P.C. The sealed exhibits of accused Jitender were sent to FSL but the same were returned with objection.
Upon completion of the necessary further investigation challan for the offences u/s 376/312 IPC was prepared against accused Jitender and was sent to the Court for trial.
2. Since the offences under section 376/312 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.
5 of 31 6 FIR No. 01/13 PS - Shahbad Dairy
3. Upon committal of the case to the Court of session and after hearing on charge, prima facie a case under sections 376/312/420 IPC was made out against accused Jitender. 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 10 witnesses. PW1 - W/Constable Pinki, PW2 - ASI Mahavir Singh, PW3 - Constable Anil, PW4 - Constable Lilu Ram, PW5 - Dr. Yudhvir Singh, CMO, M. V. Hospital, Pooth Khurd, Bawana, Delhi, PW6 - HC Ishwar Lal, PW7 - Sh. Ajay Nagar, Learned Metropolitan Magistrate, Rohini Court, Delhi, PW8 - Constable Om Pal, PW9 - Prosecutrix, PW10 - SI Anju Dahiya.
5. In brief the witnessography of the prosecution witnesses is as under : PW1 - W/Constable Pinki, who deposed that on 03/01/2013, she was posted at PS Shahbad Dairy. On that day, she joined the 6 of 31 7 FIR No. 01/13 PS - Shahbad Dairy investigation alongwith IO SI Anju Dahiya. On that day, she alongwith IO and complainant/prosecutrix (name withheld) reached at place of incident where IO prepared the site plan at the instance of complainant. Thereafter, she alongwith IO and victim/prosecutrix (name withheld) reached at Maharshi Valmiki Hospital for her medical examination. Thereafter they returned back to the Police Station and IO had recorded her statement.
PW2 - ASI Mahavir Singh is the Duty Officer, who deposed that on 03/01/2013, he was posted as Duty Officer in PS Shahbad Dairy and was on duty from 8:00 a.m. to 4:00 p.m. On that day, at about 1:35 p.m., SI Anju Dahiya handed over him a Tehrir and on the basis of which and on his instructions, the present FIR No. 1/13 was registered u/s 376/312 IPC and after registration of FIR, he handed over the copy of FIR and original Rukka to SI Anju Dahiya for further investigation. He has brought the original FIR register. Copy of the same is Ex. PW2/A, bearing his signature at point 'A'. He made endorsement on the Rukka and the same is Ex. PW2/B, bearing his signature at point 'A'. He has also brought DD Register containing DD 7 of 31 8 FIR No. 01/13 PS - Shahbad Dairy No. 30 A, dated 02/01/2013, the copy of the same is Ex. PW2/C (OSR).
PW3 - Constable Anil, who deposed that on 03/01/2013, he was posted as Constable in PS Shahbad Dairy. On that day, he reached at M. V. Hospital where he met IO SI Anju Dahiya alongwith prosecutrix (name withheld) and accused Jitender, present in the Court. Thereafter, accused Jitender was medically examined and after medical examination, Doctor handed over the sealed pullinda containing exhibits and the same were seized by the IO vide memo Ex. PW3/A, bearing his signature at point 'A'. Thereafter, they came back to Police Station and case property deposited in the Malkhana.
PW4 - Constable Lilu Ram, who deposed that on 03/01/2013, he was posted as Constable in PS Shahbad Dairy. On that day, he alongwith SI Anju Dahiya and prosecutrix (name withheld) reached at A 480, Shahbad Dairy where IO prepared the site plan at the instance of the prosecutrix (name withheld). They took prosecutrix (name withheld) in M. V. Hospital for medical examination where she refused to get herself internally medically examined. They came back to 8 of 31 9 FIR No. 01/13 PS - Shahbad Dairy Police Station and IO had taken the copy of FIR and original Rukka from the Duty Officer. Thereafter, they left the Police Station in search of the accused and reached at Shahbad Dairy and Beat Constable Om Pal was also joined in the investigation. Thereafter, they reached D Block and from there at the instance of prosecutrix (name withheld), apprehended the accused Jitender, present in the Court. He was interrogated and arrested vide arrest memo Ex. PW4/A, his personal search was conducted vide memo Ex. PW4/B & he made disclosure statement Ex. PW4/C, all bearing his signature at point 'A'. Accused pointed out the place of occurrence vide pointing out memo Ex. PW4/D, bearing his signature at point 'A'. Accused was medically examined and thereafter they came back to Police Station.
PW5 - Dr. Yudhvir Singh, CMO, M. V. Hospital, Pooth Khurd, Bawana, Delhi, who deposed that he has been deputed by the MS of the Hospital to depose on behalf of Dr. Ankur Sharma who has since left the services of Hospital and his present whereabouts are not known. He is acquainted with the handwriting and signatures of Dr. Ankur Sharma as he has seen him signing and writing during the official course 9 of 31 10 FIR No. 01/13 PS - Shahbad Dairy of the duties. As per the MLC No. 32/13, on 03/01/2013 patient/prosecutrix (name withheld) D/o Ralus, Age 21 years, female was brought in the Hospital with the alleged H/o sexual assault. The patient was initially examined by Dr. Ankur Sharma and on local examination no external injury seen. Thereafter, the patient was referred to S.R. Gynae. The MLC is Ex. PW5/A, bearing the signature of Dr. Ankur Sharma at point 'A'. As per the MLC No. 39/13, on 03/01/2013 patient Jitender S/o Om Prakash, Age 27 years, male was brought in the Hospital with the alleged H/o sexual assault, last intercourse on 20th November. The patient was examined by Dr. Ankur Sharma and after examination he opined that there is nothing to suggest that patient is incapable of performing sexual intercourse. Samples were taken. The MLC is Ex. PW5/B, bearing the signature of Dr. Ankur Sharma at point 'A'.
PW6 - HC Ishwar Lal is the MHC(M), who deposed that on 03/01/2013, he was working as MHC(M) in PS Shahbad Dairy. On that day, SI Anju Dahiya deposited five pullindas along with a sample seal sealed with the seal of "MS MB Hospital Pooth Khurd" and the same 10 of 31 11 FIR No. 01/13 PS - Shahbad Dairy were deposited by him and made entry in Register No. 19 vide Serial No. 1095. He has brought the original Register No. 19 and the copy of the above entry is Ex. PW6/A. (OSR).
PW7 - Sh. Ajay Nagar, Learned Metropolitan Magistrate, Rohini Court, Delhi, who deposed that on 04/01/2013, an application was assigned to him for recording statement of prosecutrix (name withheld) as he was Link MM of Sh. Kishore Kumar, Learned MM, Rohini Court, Delhi. The prosecutrix was identified by IO W/SI Anju. He has asked some preliminary questions to the victim/prosecutrix to test whether she was giving the answers voluntarily and after being satisfied of her competency and voluntariness, he proceeded to record her statement. Then, he recorded the statement of prosecutrix (name withheld), which is Ex. PW7/A bearing his signatures at points 'C' and signed by the prosecutrix at points 'D'. He also appended the certificate regarding the true and correctness of the statement made by the prosecutrix signed by him at point 'E'. After recording her statement, he also allowed to provide a copy of the statement to the IO on her application Ex. PW7/B. The Ahlmad was directed to send the statement in the sealed envelope.
11 of 31 12 FIR No. 01/13 PS - Shahbad Dairy PW8 - Constable Om Pal, who deposed that on 03/01/2013, he was posted as Constable at PS - Shahbad Dairy, Delhi. On that day, he was on patrolling duty in the beat area. At about 10:00 a.m., when he was present at some distance from the Bus Stand, Shahbad Dairy, at that time SI Anju Dahiya came at Bus Stand alongwith one girl namely prosecutrix (name withheld) and called him at Bus Stand. He was joined by the IO in the investigation of this case and then they went to H. No. B
- 382, Shahbad Dairy. There, prosecutrix (name withheld) pointed out towards the accused Jitender, who was standing int he street. Accused Jitender was apprehended. He correctly identified the accused Jitender, present in the Court. IO arrested the accused Jitender vide arrest memo and personal search memo already exhibited as Ex. PW4/A & Ex. PW4/B respectively. The arrest memo bears his signature at point 'A'. Accused Jitender also gave disclosure statement already exhibited as Ex. PW4/C, bearing his signature at point 'B'. Thereafter, accused Jitender was taken to PS - Shahbad Dairy.
PW9 - Prosecutrix is the victim who deposed regarding the 12 of 31 13 FIR No. 01/13 PS - Shahbad Dairy incident and proved her statement recorded by the Police Ex. PW9/A, arrest memo of accused Jitender already Ex. PW4/A, personal search memo of accused Jitender already Ex. PW4/B and her statement recorded u/s 164 Cr.P.C. Ex. PW7/A. She resiled from her previous statement and was also crossexamined by the Learned Addl. PP for the State.
PW10 - SI Anju Dahiya is the Investigating Officer (IO) of the case, who deposed that on 02/01/2013, she was posted in PS Shahbad Dairy. On that day on receipt of DD No. 30A, she alongwith SI Sonu and Constable Anil went to the spot at F 494, Prahlad Pur, Delhi, where none was available. She made call on the mobile phone number 9311106321 mentioned in DD entry No. 30A. Her call was attended by prosecutrix (name withheld) on the above mentioned mobile phone number, who told her that just now she could not meet them and she will come in the morning in the Police Station and give her statement. She alongwith her staff returned back to PS. Next day i.e on 03/01/2013 prosecutrix (name withheld) came to PS and gave her statement in presence of Smt. Nazma Khan, who was representative of NGO. She 13 of 31 14 FIR No. 01/13 PS - Shahbad Dairy recorded the statement of prosecutrix (name withheld) already Ex. PW9/A which bears her signature at Point 'A' which was attested by her at Point 'B'. She prepared Rukka Ex. PW10/A and got the case registered through Duty Officer. She alongwith L/Constable Pinki went for medical examination of prosecutrix (name withheld) at MV Hospital, Pooth Khurd, Delhi. Then they left for the spot where she prepared site plan Ex. PW10/B at the pointing out of the prosecutrix. Thereafter, she alongwith prosecutrix and L/Constable returned back to PS. The Duty Officer handed over to her Rukka and copy of FIR. Thereafter, L/constable Pinki was spared from the investigation. She alongwith prosecutrix and Constable Leelu Ram went in search of accused. They reached Shahbad Dairy where they met Constable Om Pal. They alongwith Constable Om Pal went to the house of accused. She arrested the accused in PS Shahbad Dairy on the identification of prosecutrix vide arrest memo already Ex. PW4/A and his personal search was conducted vide memo already Ex. PW4/B. Accused pointed out the place of occurrence where he made physical relation with prosecutrix vide pointing out memo already Ex. PW4/D. She recorded the disclosure statement of accused which is already Ex. PW4/E. Then they 14 of 31 15 FIR No. 01/13 PS - Shahbad Dairy returned back to PS. She recorded supplementary statement of the prosecutrix and spared her. Then she alongwith accused, Constable Om Pal and Constable Leelu Ram went to MV Hospital for medical examination of accused. Accused was got medically examined. In the meanwhile, Constable Anil also came to the Hospital. All the exhibits handed over by Doctor were seized by her in presence of Constable Anil vide seizure memo already Ex. PW3/A. She alongwith her staff and accused returned back to PS. Accused was sent to lockup. She deposited the case property in Malkhana. She produced the accused in the Court on the next day. He was sent to JC. She got statement u/s 164 Cr.P.C. of prosecutrix recorded vide her application Ex. PW10/C and obtained the copy of the statement u/s 164 Cr.P..C vide my application already Ex. PW9/B. The sealed exhibits of the accused as were sent to the FSL were returned by the FSL and the same were deposited in the Malkhana. I collected PCR form. After completion of the investigation she filed the chargesheet in the Court. Accused Jitender is present in the court (correctly identified).
15 of 31 16 FIR No. 01/13 PS - Shahbad Dairy The testimonies of the prosecution witnesses shall be dealt with in detail during the course of appreciation of evidence.
6. Statement of accused Jitender was recorded u/s 313 Cr.P.C. wherein he pleaded innocence and false implication. Accused Jitender 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 the prove its case beyond reasonable doubts and prayed for the acquittal of the accused on all 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.
16 of 31 17 FIR No. 01/13 PS - Shahbad Dairy
9. I have heard Ms. Kiran Bala, Learned Addl. PP for the State and Sh. Tabish Sarosh, Learned Counsel for the accused and have also carefully perused the entire record.
10. The charge for the offences punishable u/s 376/312/420 IPC against the accused Jitender is that from the last one year to 03/01/2013 at A - 480, near Bus Stand Shahbad Dairy, within the jurisdiction of PS
- Shahbad Dairy, he committed rape upon prosecutrix (name withheld) D/o Sh. Ralush, aged about 21 years many times on the pretext of marriage with her and thereafter in consequence thereof she became pregnant and thereafter, he caused miscarriage of her against her will and that alternatively, during the abovesaid period and place, he cheated complainant/prosecutrix (name withheld) D/o Sh. Ralush by dishonestly inducing her to establish physical relation with her on the false pretext of marriage with her and thereupon established the physical relation with her.
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 17 of 31 18 FIR No. 01/13 PS - Shahbad Dairy 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. PW9 - Prosecutrix in her statement recorded in the Court on 22/09/2014 while giving her particulars has stated her age as 22 years.
Since PW9 - prosecutrix has stated her age as 22 years on 22/09/2014 at the time of recording her evidence/statement in the Court and the date of alleged incident is from the last one year to 03/01/2013, on simple arithmetical calculation, the age of the prosecutrix comes to 19 years, 03 months and 11 days as on the date of alleged incident on 03/01/2012 as from the last one year to 03/01/2013.
Moreover, the said factum of age of PW9 - prosecutrix has also not been disputed by accused Jitender. 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 18 of 31 19 FIR No. 01/13 PS - Shahbad Dairy PW9 - prosecutrix was aged 19 years, 03 months and 11 days as on the date of incident from the last one year to 03/01/2013. MEDICAL EVIDENCE OF THE PROSECUTRIX
13. PW5 - Dr. Yudhvir Singh, CMO, M. V. Hospital, Pooth Khurd, Bawana, Delhi has deposed that he has been deputed by the MS of the Hospital to depose on behalf of Dr. Ankur Sharma who has since left the services of Hospital and his present whereabouts are not known. He is acquainted with the handwriting and signatures of Dr. Ankur Sharma as he has seen him signing and writing during the official course of the duties. As per the MLC No. 32/13, on 03/01/2013 patient/prosecutrix (name withheld) D/o Ralus, Age 21 years, female was brought in the Hospital with the alleged H/o sexual assault. The patient was initially examined by Dr. Ankur Sharma and on local examination no external injury seen. Thereafter, the patient was referred to S.R. Gynae. The MLC is Ex. PW5/A, bearing the signature of Dr. Ankur Sharma at point 'A'.
Despite grant of opportunity, PW5 - Dr. Yudhvir Singh was not crossexamined on behalf of the accused.
19 of 31 20 FIR No. 01/13 PS - Shahbad Dairy In view of above and in the circumstances, the medical examination vide MLC Ex. PW5/A of PW9 - prosecutrix stands proved on the record.
VIRILITY OF THE ACCUSED JITENDER
14. PW5 - Dr. Yudhvir Singh, CMO, M. V. Hospital, Pooth Khurd, Bawana, Delhi has deposed that as per the MLC No. 39/13, on 03/01/2013 patient Jitender S/o Om Prakash, Age 27 years, male was brought in the Hospital with the alleged H/o sexual assault, last intercourse on 20th November. The patient was examined by Dr. Ankur Sharma and after examination he opined that there is nothing to suggest that patient is incapable of performing sexual intercourse. Samples were taken. The MLC is Ex. PW5/B, bearing the signature of Dr. Ankur Sharma at point 'A'.
Despite grant of opportunity, PW5 - Dr. Yudhvir Singh was not crossexamined on behalf of the accused.
In view of above and in the circumstances, it stands 20 of 31 21 FIR No. 01/13 PS - Shahbad Dairy proved on the record that accused Jitender was capable of performing sexual intercourse.
15. Now let the testimony of PW9 Prosecutrix be perused and analysed.
PW9 Prosecutrix, in her examinationinchief has deposed which is reproduced and reads as under : "In the year 2011, I was residing in Prahlad Pur, Delhi on rent. I was residing with my bhaia and bhabhi. I was working as a nurse in Manshvi Maternity Centre, situated at Sector15, Rohini, Delhi. I was not doing any work except that of a nurse. I came to know accused Jitender, when I had gone to talk, regarding attending the computer course at Shahbad Dairy, Delhi.
I can identify accused Jitender, if shown to me. At this stage, the wooden partition has been removed. Accused Jitender is present in the court (correctly identified).
The wooden partition now has been restored to its original position.
I had met once accused Jitender, when I had gone to talk regarding attending the computer course and thereafter my talks with him used to take place on mobile phone. I was married at that time and 21 of 31 22 FIR No. 01/13 PS - Shahbad Dairy was having one son of about one year. My husband namely Satender had deserted me (mujhe chhod diya tha). Whenever my talks on phone used to take place with accused Jitender, I had told him for about me and thereafter he started doing the general talks with me. Accused Jitender started liking me and told me that he wanted to marry with me. He was doing the loving talks with me but was intending to marriage somewhere and due to this reason I got enraged (mujhe gusha aa gaya) and I phoned the police at 100 number. I told the police that accused Jitender is having affair with me but is marrying somewhere else. My statement was recorded by the police in the police station on my being called through phone.
My signature is at point 'A' on the statement, dated 03/01/2013, Ex. PW9/A. Police took me to the Hospital for my medical examination. Accused Jitender was arrested from his house, at Shahbad Dairy vide arrest memo already exhibited as Ex. PW4/A, bearing my signature at point 'B' and his personal search was conducted vide personal search memo already exhibited as Ex. PW4/B, bearing my signature at point 'B'.
I do not know at which place accused Jitender had taken the police and as to what had been pointed out/shown to the Police. Police had arrested accused Jitender after I had made call to the Police. Except for the reason that accused Jitender was having the love affairs with me and was intending to marry somewhere else, there was no other reason for my making call to the police. My statement u/s 164 Cr.P.C. was also recorded by the Ld. MM, which is already exhibited as Ex. PW7/A, bearing my signature at point 'B'."
From the aforesaid narration of PW9 - prosecutrix, it is 22 of 31 23 FIR No. 01/13 PS - Shahbad Dairy clear that in the year 2011, she was residing in Prahlad Pur, Delhi on rent. She was residing with her bhaia and bhabhi. She was working as a nurse in Manshvi Maternity Centre, situated at Sector 15, Rohini, Delhi. She was not doing any work except that of a nurse. She came to know accused Jitender, when she had gone to talk, regarding attending the computer course at Shahbad Dairy, Delhi. She correctly identified accused Jitender, present in the Court. She had met once accused Jitender, when she had gone to talk regarding attending the computer course and thereafter her talks with him used to take place on mobile phone. She was married at that time and was having one son of about one year. Her husband namely Satender had deserted me (mujhe chhod diya tha). Whenever her talks on phone used to take place with accused Jitender, she had told him for about her and thereafter he started doing the general talks with her. Accused Jitender started liking her and told her that he wanted to marry with her. He was doing the loving talks with her but was intending to marriage somewhere and due to this reason she got enraged (mujhe gusha aa gaya) and she phoned the Police at 100 number. She told the Police that accused Jitender is having affair with her but is marrying somewhere else. Her statement was recorded by the 23 of 31 24 FIR No. 01/13 PS - Shahbad Dairy Police in the Police Station on her being called through phone. Her signature is at point 'A' on the statement, dated 03/01/2013, Ex. PW9/A. Police took her to the Hospital for her medical examination. Accused Jitender was arrested from his house, at Shahbad Dairy vide arrest memo already exhibited as Ex. PW4/A, bearing her signature at point 'B' and his personal search was conducted vide personal search memo already exhibited as Ex. PW4/B, bearing her signature at point 'B'. She does not know at which place accused Jitender had taken the Police and as to what had been pointed out/shown to the Police. Police had arrested accused Jitender after he had made call to the Police. Except for the reason that accused Jitender was having the love affairs with her and was intending to marry somewhere else, there was no other reason for her making call to the Police. Her statement u/s 164 Cr.P.C. was also recorded by the Learned MM, which is already exhibited as Ex. PW7/A, bearing her signature at point 'B'.
PW9 - Prosecutrix was also crossexamined by the Learned Addl. PP for the State which is reproduced and reads as under : 24 of 31 25 FIR No. 01/13 PS - Shahbad Dairy "It is correct that in the month of August, 2011 I used to go Shahbad Dairy for attending the classes of Computer Course. It is further correct that accused Jitender was running a shop for booking the railway tickets near the place where I used to go to attend the computer classes. It is correct that during that time I visited the shop of accused for booking the railway ticket as I had to go to village and thereafter, our friendship developed. Accused Jitender did not purpose me for marriage. Accused Jitender did not pressurize me to make physical relations with him by making promise to marry me. I did not state in my statement dated 03/01/2013 given to Police that accused Jitender proposed me for marriage and pressurized me for establishing physical relations with him prior to marriage. (Confronted with the statement Ex. PW9/A, where it is so recorded). It is wrong to suggest that I had stated to the Police in my statement accused Jitender proposed me for marriage and pressurized me for establishing physical relations with him prior to marriage. Vol. no physical relations between me and accused were established prior to this case. I did not state to the Police in my statement that due to the physical relations between me and accused Jitender I became pregnant and accused gave some medicine to me for causing miscarriage against my wishes. (Confronted with the statement Ex. PW9/A, where it is so recorded). It is wrong to suggest that due to the physical relations between me and accused Jitender I became pregnant and accused gave some medicine to me for causing miscarriage against my wishes.
I did not read my statement Ex. PW9/A prior to signing the same. Vol. police obtained my signatures on blank papers. I did not file any complaint before any authority by stating that Police obtained my signatures on blank papers. It is wrong to suggest that I made statement 25 of 31 26 FIR No. 01/13 PS - Shahbad Dairy Ex. PW9/A to the Police or that same was read over to me. It is wrong to suggest that I signed the statement Ex. PW9/A after going through the same. It is wrong to suggest that I did not file any complaint before any authority regarding the fact that my signatures were obtained by the police on blank papers as my signatures were not obtained by police on any blank papers. It is wrong to suggest that I made PCR call on 02/01/2013 as accused Jitender had committed rape upon me several times. It is wrong to suggest that I made statement Ex. PW9/A before the police as accused Jitender promised me to marry and established physical relations with me on the pretext of marriage.
It is correct that Police took me to hospital for my medical examination. I did not disclose anything to the Doctor. It is wrong to suggest that I had stated before the doctor that my friend was establishing physical relations with me for about 1 - ½ years and now left me. Vol. I refused for my internal examination as no wrong act was committed by accused with me. It is wrong to suggest that after lodging the FIR accused assured me that he would marry to me or that for this reason I made a statement in favour of accused u/s 164 Cr.P.C. before Ld. MM. It is wrong to suggest that my statement recorded u/s 164 Cr.P.C. Ex. PW7/A was not my voluntarily statement or that same was made under the pressure of accused.
It is correct that now I am married to accused Jitender. Vol. our marriage took place in the month of February, 2013 and I am living happily with him. It is wrong to suggest that I am concealing the true facts as I have won over by accused. It is wrong to suggest that I have made a statement in favour of accused as now he is my husband. It is wrong to suggest that I am deposing falsely in order to save accused. It is wrong to suggest that I am deposing falsely."
26 of 31 27 FIR No. 01/13 PS - Shahbad Dairy PW9 - Prosecutrix was not crossexamined on behalf of the accused despite grant of opportunity.
On analysing the entire testimony of PW9 - prosecutrix it is clearly indicated that during her examinationinchief she has not uttered a single word regarding committal of sexual assault upon her by accused Jitender on the false pretext of marriage except deposing that, "Accused Jitender started liking me and told me that he wanted to marry with me. He was doing the loving talks with me but was intending to marriage somewhere and due to this reason I got enraged (mujhe gusha aa gaya) and I phoned the Police at 100 number." During her crossexamination by Learned Addl. PP for the State she has specifically deposed that, "Accused Jitender did not pressurise me to make physical relations with him by making promise to marry me." She also did not support the prosecution in her statement u/s 164 Cr.P.C. Ex.PW7/A. She negated the suggestions put to her by the Learned Addl. PP for the State that she had stated to the Police in her statement accused Jitender proposed her for marriage and pressurized her for establishing physical relations with him 27 of 31 28 FIR No. 01/13 PS - Shahbad Dairy prior to marriage. Vol. no physical relations between her and accused were established prior to this case or that due to the physical relations between her and accused Jitender she became pregnant and accused gave some medicine to her for causing miscarriage against her wishes or that she made statement Ex. PW9/A to the Police or that same was read over to her or that she signed the statement Ex. PW9/A after going through the same or that she did not file any complaint before any authority regarding the fact that her signatures were obtained by the Police on blank papers as her signatures were not obtained by Police on any blank papers or that she made PCR call on 02/01/2013 as accused Jitender had committed rape upon her several times or that she made statement Ex. PW9/A before the Police as accused Jitender promised her to marry and established physical relations with her on the pretext of marriage or that she had stated before the Doctor that her friend was establishing physical relations with her for about 1 - ½ years and now left her. Vol. she refused for her internal examination as no wrong act was committed by accused with her or that after lodging the FIR accused assured her that he would marry to her or that for this reason she made a statement in favour of accused u/s 164 Cr.P.C. before Ld. MM or that her statement recorded 28 of 31 29 FIR No. 01/13 PS - Shahbad Dairy u/s 164 Cr.P.C. Ex. PW7/A was not her voluntarily statement or that same was made under the pressure of accused or that she is concealing the true facts as she has won over by accused or that she has made a statement in favour of accused as now he is her husband or that she is deposing falsely in order to save accused or that she is deposing falsely.
As discussed herein before, PW9 - prosecutrix has been found to be aged around 20 years, from the testimony of PW9 - prosecutrix, nothing is being indicated that from the last one year to 03/01/2013 at A - 480, near Bus Stand Shahbad Dairy, accused Jitender committed rape upon her many times on the pretext of marriage with her or that thereafter in consequence thereof she became pregnant or that he caused miscarriage of her against her will or that he cheated her by dishonestly inducing her to establish physical relation with her on the false pretext of marriage with her and thereupon established the physical relation with her.
16. In view of above and in the circumstances, I find that the prosecution has failed to prove its case beyond reasonable doubt against 29 of 31 30 FIR No. 01/13 PS - Shahbad Dairy accused Jitender. The hostility of PW9 - prosecutrix has knocked out the bottom of the case of the prosecution. There is nothing on record to indicate that that from the last one year to 03/01/2013 at A - 480, near Bus Stand Shahbad Dairy, accused Jitender committed rape upon PW9 - prosecutrix, aged around 20 years many times on the pretext of marriage with her or that thereafter in consequence thereof she became pregnant or that he caused miscarriage of her against her will or that he cheated her by dishonestly inducing her to establish physical relation with her on the false pretext of marriage with her and thereupon established the physical relation with her.
I accordingly, acquit accused Jitender for the offences punishable u/s 376/312/420 IPC.
17. In view of above discussion, I am of the considered opinion that as far as the involvement of accused Jitender in the commission of offences punishable u/s 376/312/420 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 Jitender beyond shadows of all reasonable doubts and there 30 of 31 31 FIR No. 01/13 PS - Shahbad Dairy is a room for hypothesis, consistent with that of innocence of accused Jitender. I, therefore, acquit accused Jitender for the offences punishable u/s 376/312/420 IPC after giving him the benefit of doubt. Accused Jitender is on bail. However, u/s 437A Cr.P.C. the bail bond of accused Jitender 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 20th Day of August, 2015 Additional Sessions Judge Special Fast Track Court (North District), Rohini, Delhi 31 of 31