Delhi District Court
State vs . Vikas @ Vicky on 17 October, 2015
1
FIR No.94/15
PS - Mahendra Park
IN THE COURT OF SH. MAHESH CHANDER GUPTA :
ADDITIONAL SESSIONS JUDGE : SPECIAL FAST TRACK
COURT : NORTH DISTRICT : ROHINI : DELHI
SESSIONS CASE NO. : 62/12
Unique ID No. : 02404R0138492015
State Vs. Vikas @ Vicky
S/o Late Sh. Jai Pal
R/o H. No. B1560
Jahangir Puri,
Delhi.
FIR No. : 94/15
Police Station : Mahendra Park
Under Sections : 376/328/366/377/506 IPC
Date of committal to session Court : 16.05.2015
Date on which judgment reserved : 08.10.2015
Date on which judgment announced : 17.10.2015
J U D G M E N T
1. Briefly stated the case of the prosecution as unfolded by the 1 of 40 2 FIR No.94/15 PS - Mahendra Park report under section 173 Cr.P.C. is as under : That on On 04.02.2015, prosecutrix (name withheld being a case u/s 376 IPC) D/o Sh. Brij Lal R/o Jhuggi Meerut Cantt, Lal Kurti, Jamun Mohalla, Near Jyoti Place, Meerut UP, came to PS Mahendra Park and made the statement to SI Seema which is to the effect that, she lives on rent at the above address with her family. In the year 2014, her friendship took place with Vikas s/o Jaipal, R/o B215, Jahangirpuri, Delhi, when she was living with her bua Narmada w/o Panna Lal R/o A770, Jahangirpuri, Delhi. She and Vikas started meeting with each other. On 23.03.2014, during the day time Vikas came to the house of her bua and she was alone at that time. Vikas had brought cold drink and chocolate for her and she had drank the cold drink and ate the chocolate and thereafter, she started feeling something like strange and she became numb (uskai baad mujhe ajeeb sa ho gaya, mera dimaag chalna band ho gaya), Vikas forcibly made physical relations with her and went away. Thereafter in April, 2014 Vikas again came to the house of her bua and after inducing her and on the false pretext of marriage he established physical relations with her. Her bua came to know, of her relation with Vikas. Thereupon, her bua in May'2014 had left her to the house of her 2 of 40 3 FIR No.94/15 PS - Mahendra Park parents at Meerut. In June'2014 Vikas came to Meerut and after inducing her and on the false pretext of marriage took her to Rakesh Hotel near Begumpur, Meerut camp, UP and there he forcibly made physical relations with her in a room. Vikas had taken her for about 23 times in Rakesh Hotel. Vikas had also taken her to another hotel 56 times in Meerut itself and lastly, he had taken him on 11.01.2015 where also he forcibly made physical relations with her. On 02.02.2015, she had come to the police station to lodge a report but he (Vikas) came on following her and started saying to perform the marriage with her and he also gave it in writing hence, on that day, she did not lodge any report. When Vikas had gone to leave her at Meerut then he had snatched that written paper and started refusing to perform the marriage. Today (on 04.02.2015) she has come for legal action against Vikas. Statement has been heard, understood and is correct. On the basis of statement, finding that offences u/s 376/328/366 IPC appeared to have been committed, the case was got registered and the investigation was proceeded with by SI Seema. During the course of investigation, prosecutrix was got medically examined from BJRM hospital vide MLC no. 92001/15 E.No. 260345 and the doctor has mentioned on the MLC "A/H/O physical assault and 3 of 40 4 FIR No.94/15 PS - Mahendra Park A/H/O sexual assault on 11.01.2015 by a man named Vikas" and the sealed exhibits handed over by the doctor after her medical examination were taken into police possession. The site plan of the place of the occurrence was prepared at the instance of the prosecutrix. Prosecutrix was got counselled from Ms. Madhu Dass, NGO. Statements of the witnesses were recorded. Statement of the prosecutrix was got recorded u/s 164 CrPC. The date of the birth of the prosecutrix was got verified from M.C.Primary School, G Block, Jahangirpuri, Delhi. On 04.02.2015, accused Vikas @ Vicky was arrested at the instance of the prosecutrix and his disclosure statement was recorded. Pointing out memo of the place of incident, House No A770, Ground Floor, Jahangirpuri, Delhi, was prepared at the instance of the accused. Medical examination of accused Vikas @ Vicky was got conducted from BJRM hospital vide MLC No. 91751/50 and the sealed exhibits handed over by the doctor after his medical examination were taken into police possession. One day police custody remand of the accused was obtained. Pointing out memos of the places of incident were prepared at the instance of the accused. IDs of the accused and booking records of the hotel were taken into police possession. The potency test of the accused was got conducted 4 of 40 5 FIR No.94/15 PS - Mahendra Park from Dr. RML hospital on 23.02.2015 vide MLC No. E/40822/15.
Upon completion of the necessary further investigation challan for the offences u/s 376/328/366/377/506 IPC was prepared against accused Vikas @ Vicky and was sent to the Court for trial.
2. Since the offences under sections 376/328/366 IPC are exclusively triable by the Court of Session therefore, after compliance of the provisions of section 207 Cr.P.C. the case was committed to the Court of Session under section 209 Cr.P.C.
3. Upon committal of the case to the Court of session and after hearing on charge, prima facie a case under sections 328/376/366/377/506 IPC was made out against accused Vikas @ Vicky. 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 12 witnesses. PW1 - HC Satpal Singh, PW2 - Lady 5 of 40 6 FIR No.94/15 PS - Mahendra Park Constable Sunita, PW3 - Prosecutrix (name withheld), PW4 - Dr. Shweta Sinha, SR Obs. & Gynae, BJRM Hospital, Delhi, PW5 - Dr. Gopal Krishna, Medical Officer, BJRM Hospital, Delhi, PW6 - Ms. Anupama Malik, Teacher, MCPS, FG1, Jahangirpuri, Delhi, PW7 - WSI Seema, PW8 - Ms. Rajni Ranga, MM, Rohini Courts, Delhi, PW9 - HC Mukesh Kumar, PW10 - Dr. Yogesh Tekwani, CMO, BJRM Hospital, PW11 - Dr. Arun Makkar, SR. Department of Urology, RML Hospital and PW12 - Dr. R.S. Mishra, CMO, BJRM Hospital.
5. In brief the witnessography of the prosecution witnesses is as under : PW1 - HC Satpal Singh is the Duty Officer, who deposed that on 04.02.2015, he was posted as Duty Officer in PS Mahendra Park and was on duty from 4.00 pm to 12.00 midnight. On that day, at about 4.10pm, SI Seema handed over a Tehrir to him and on the basis of which and on his instructions, the present FIR No.94/15 was registered u/s. 376/328/366 IPC and after registration of FIR, he handed over the copy of FIR and original rukka to WSI Seema for further investigation. He 6 of 40 7 FIR No.94/15 PS - Mahendra Park has brought the original FIR register. Copy of the same is Ex. PW1/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 had issued certificate u/s 65 B Indian Evidence Act in this regard which is Ex.PW1/C, bearing his signature at point A. PW2 - Lady Constable Sunita, who deposed that on 04.02.2015, she was posted at PS Mahendra Park. On that day she had joined the investigation with WSI Seema and she alongwith SI Seema took the victim / prosecutrix to BJRM hospital where she got conducted the medical examination of prosecutrix / victim. Doctor also handed over one sealed parcel i.e., sexual assault kit with the seal of MS BJRM JPURI and one sample seal to her and same were handed over to the IO and taken into possession vide seizure memo Ex.PW2/A bearing her signature at point A. Thereafter, they alongwith prosecutrix reached at the spot i.e., house no. A 770, Jahangirpuri, Delhi who pointed out the place of incident. IO prepared the pointing out memo Ex.PW2/B bearing her signature at point A. Constable Ikdutt also accompanied with her. Her statement was also recorded by the IO and they took the victim to 7 of 40 8 FIR No.94/15 PS - Mahendra Park Matra Chaya (Matri Chaya), Jahangirpuri and she was kept there.
PW3 - Prosecutrix is the victim who deposed some facts regarding the incident and marked her statement made to the police Mark PW3/PA and proved her statement u/s 164 Cr.P.C Ex. PW3/A, the pointing out memo of the place of incident Ex. PW2/B, arrest memo of the accused Ex. PW3/B, marked the disclosure statement of the accused Mark PW3/PB and proved the copy of her marriage certificate with accused Vikas Ex. P1. She resiled from her previous statement and was also crossexamined by the Learned Addl. PP for the State.
PW4 - Dr. Shweta Sinha, SR Obs. & Gynae, BJRM Hospital, Delhi, who deposed that she had been deputed by the MS of the hospital to depose on behalf of Dr. Sumiti Mehta who is on leave. She is acquainted with the handwriting and signatures of Dr. Sumiti Mehta as she has seen her signing and writing during the official course of the duties. As per the MLC No. 92001, on 04.02.2015 patient/Prosecutrix (name withheld) D/o Brij Lal, Age 19 Years, Female was produced in the hospital by L/Ct. Sunita whose gynecological 8 of 40 9 FIR No.94/15 PS - Mahendra Park examination was conducted by Dr. Sumiti Mehta and the said examination is encircled in red from Portion 'X to X' on the MLC Ex. PW 4/A, bearing the signature of Dr. Sumiti Mehta at point A. The treatment paper of the patient/Prosecutrix (name withheld) D/o Brij Lal, Age 19 Years, Female which was prepared by Dr. Sumiti Mehta at the time of the preparation of her MLC is Ex. PW4/B bearing the signature of Dr. Sumiti Mehta at point A. PW5 - Dr. Gopal Krishna, Medical Officer, BJRM Hospital, Delhi, who deposed that on 14.02.2015 he was posted as CMO in BJRM hospital. On that day one patient Vikas S/o Jaipal, Age 19 Years, Male was produced for medical examination by Ct. I.K.Dutt. He was examined by Dr. Bharat, JR under his supervision. No fresh external injury was seen at the time of examination. The MLC is Ex. PW5/A bearing his signature at PointA and the signature of Dr. Bharat at PointB. He identifies the handwriting of Dr. Bharat, JR at PointB and the noting in his hand is from PointX to X1, as he has worked with him and I has seen him writing and signing in course of his official duty.
9 of 40 10 FIR No.94/15 PS - Mahendra Park PW6 - Ms. Anupama Malik, Teacher, MCPS, FG1, Jahangirpuri, Delhi, who deposed that she has brought the original admission form, Admission Register, and affidavit regarding the age of prosecutrix. As per record on 29082001 prosecutrix (name withheld) alongwith her mother came to their school and mother of the prosecutrix filled the Admission Form and she also filled an affidavit regarding age of the prosecutrix. Copy of the same is Ex.PW6/A (OSR) and Ex.PW6/B respectively. On the basis of admission form and affidavit prosecutrix (name withheld) was admitted in their school in class Ist and entry was made at serial no.4983 in Admission and Withdrawal Register of the school. Copy of the same is Ex.PW6/C (OSR). As per record the Date of Birth of prosecutrix is 17051993.
PW7 - WSI Seema, is the investigating officer (IO), of the case, who deposed that on 04022015 she was posted at PS Mahendra Park. On that day prosecutrix (name withheld) came to the PS. She recorded the statement of prosecutrix which is Ex.PW7/A bearing her (PW7) signature at point B. She made her endorsement which is Ex.PW7/B bearing her signature at point A and same was handed over to 10 of 40 11 FIR No.94/15 PS - Mahendra Park Duty Officer for registration of the case. After registration of the case Duty officer handed over original rukka and copy of FIR Ex.PW1/A to her for further investigation of the case. She took the prosecutrix to BJRM hospital alongwith lady Ct. Sunita. In the hospital she got conducted the medical examination of the prosecutrix. After the medical examination the doctor handed over one sexual assault kit with the seal of the hospital and one sample seal to lady Ct. Sunita and she produced before her and she had taken into possession vide memo Ex.PW2/A bearing her signature at point B. Thereafter prosecutrix led them to the spot and pointed out the place of incident. She prepared the site plan at the instance of prosecutrix which is Ex.PW7/C bearing her signature at point A. She recorded the supplementary statement of the prosecutrix thereafter they took the prosecutrix to Matrichaya, Jahangirpuri, Delhi where she was left there for night stay. On next day i.e. 050215 prosecutrix was taken out from Matrichaya and she alongwith prosecutrix came to Rohini Court and she got recorded the statement of prosecutrix u/s 164 Cr. PC vide application Ex.PW7/D bearing her signature at point A. Statement of prosecutrix was recorded u/s 164 Cr. PC. She identified the victim before the Learned MM vide her 11 of 40 12 FIR No.94/15 PS - Mahendra Park certificate portion X to X vide Ex.PW3/A bearing her signature at point B. She obtained the copy of statement u/s 164 Cr. PC vide application Ex.PW7/E bearing her signature at point A. Thereafter she added the section 377/506 IPC. Thereafter she recorded the supplementary statement of the prosecutrix. On 10022015 on her instructions MHC(M)handed over sealed parcels to Ct. Praveen for depositing in FSL Rohini. Ct. Praveen had deposited the same in FSL Rohini, after depositing he obtained the receipt on RC and receipt acknowledgment. Same was handed over to the MHC(M). She recorded the statement of Ct. Praveen and MHC(M). On 14022015 she alongwith prosecutrix and Ct. Ikdutt reached at H. No.B1560, Jahangirpuri, Delhi from where accused Vikas @ Vicky present in the Court, correctly identified, was arrested at the instance of the prosecutrix vide arrest memo Ex.PW3/B bearing her signature at point C and his personal search was conducted vide memo Ex.PW7/F bearing her signature at point A. Accused made disclosure statement which is Ex.PW7/G bearing her signature at point A. Thereafter accused led them to the H. No.A770 and pointed out the place of incident. she prepared the pointing out memo which is Ex.PW2/B bearing her signature at point B. Thereafter she recorded the 12 of 40 13 FIR No.94/15 PS - Mahendra Park supplementary statement of the prosecutrix. Thereafter she took the accused to BJRM hospital and she got conducted the medical examination of the accused. After medical examination doctor handed over one sealed parcel containing blood sample of accused and sample seal to Ct. Ikdutt. Ct. Ikdutt handed over to her the same which were taken into possession vide memo Ex.PW7/H bearing her signature at point A. Thereafter they reached at PS Shalimar Bagh. Accused was put inside the lockup and they came back to PS Mahendra Park. Case property was deposited in the malkhana. She recorded the statement of Ct. Ikdutt. On 150215 she alongwith Ct. Virender and Ct. Kapil reached at PS Shalimar Bagh and accused had been taken out from the lockup. Accused was produced before Learned Duty MM and she obtained two days PC of the accused. Thereafter accused led them to Komal guest house which was situated on the first floor of Rakesh hotel and pointed out the hotel Rakesh and she prepared the pointing out memo which is Ex.PW7/J bearing her signature at point A. She had obtained the Visitor Register Ex.P1 and photocopy of Driving licence of Vikas which was given by him for ID proof and same were taken into possession vide seizure memo Ex.PW7/K bearing her signature at point 13 of 40 14 FIR No.94/15 PS - Mahendra Park A. She recorded the statement of Sh. Laxman, Manager of Rakesh Hotel. Thereafter accused led them to ESquare Hotel i.e. No.188, Abulane near Nishant Cinema, Meerut and she seized the photocopy of the Visitor's register Ex.P2 (6 pages) alongwith photocopy of DL vide seizure memo Ex.PW7/L bearing her signature at point A. She recorded the statement of Manager Jeetu Chaudhary and accused pointed out the room in which accused had committed the rape upon the prosecutrix. She prepared the pointing out memo Ex.PW7/M bearing her signature at point A. On next day accused was produced before Court concerned and was sent to JC. Later on, on her instructions MHC(M) handed over the exhibits of accused to Ct. Rajesh for depositing in FSL Rohini. Ct. Rajesh had deposited the same in FSL Rohini. After deposit Ct. Rajesh obtained receipt on RC and acknowledgment. She recorded the statement of Ct. Rajesh. The accused was produced before the doctor in RML hospital and got conducted the potency test of the accused. After completion of investigation she filed the chargesheet.
PW8 - Ms. Rajni Ranga, MM, Rohini Courts, Delhi, who deposed that on 05.02.2015, she was posted as MM at Rohini Courts. On 14 of 40 15 FIR No.94/15 PS - Mahendra Park that day, an application for recording the statement u/s 164 Cr.P.C. was marked to her. On the same day i.e 05.02.2015 IO W/SI Seema, PS Mahendra Park appeared before her alongwith the prosecutrix (name withheld). She recorded the statement u/s 164 Cr.P.C of the prosecutrix (name withheld) which is already Ex. PW3/A bearing her signature at Point C (on each page). After recording the statement, IO moved an application for supply of the proceedings conducted by her which was allowed by her vide her endorsement already Ex. PW7/D bearing her signature at PointC. The certificate in this regard is Ex. PW8/A bearing her signature at PointC. After recording the statement of prosecutrix, the same was sent in a sealed cover/envelope Ex. PW8/B bearing her signature at PointC. PW9 - HC Mukesh Kumar is the MHC(M), who deposed that on 04022015 he was posted as MHC(M) in PS Mahendra Park. On that day SI Seema deposited sexual kit sealed pulinda/pulindas sealed with the seal of BJRM hospital alongwith sample seal in the Malkhana. He made entry at serial no. 795 in register no. 19. He has brought the 15 of 40 16 FIR No.94/15 PS - Mahendra Park original register no.19 copy of the same is Ex.PW9/A. On 10022015, on the instructions of IO, one sealed pulinda/pulindas alongwith sample seal of BJRM hospital were handed over to Ct. Praveen for depositing the same in the FSL, Rohini vide RC No. 14/21/15. After depositing the same in FSL Rohini and after depositing he obtained the receipt on RC and acknowledgment receipt. He has brought the original RC book and acknowledgment . Copy of the same is Ex.PW9/B bearing his signature at point A and acknowledgment Ex.PW9/C. On 14022015 SI Seema deposited one pullanda containing blood sample of accused and sealed with the seal of BJRM hospital alongwith sample seal in the Malkhana. He made entry at serial no. 805 in register no. 19. Copy of the same is Ex.PW9/D. On 18022015, on the instructions of IO, one sealed pulinda/pulindas alongwith sample seal of BJRM hospital were handed over to Ct. Rajesh for depositing the same in the FSL, Rohini vide RC No. 21/21/15. After depositing the same in FSL Rohini and after depositing he obtained the receipt on RC and acknowledgment receipt. He has brought the original RC book and acknowledgment . Copy of the same is Ex.PW9/E bearing his signature at point A and acknowledgment Ex.PW9/F (OSR). Sealed pulindas remained intact during my custody.
16 of 40 17 FIR No.94/15 PS - Mahendra Park PW10 - Dr. Yogesh Tekwani, CMO, BJRM hospital, who deposed that on 04022015 one patient/prosecutrix (name withheld) d/o Brijlal Age 19 Years, female has been brought by lady Ct. Sunita to the hospital with the alleged history of sexual assault. She was medically examined by him and on examination no fresh external injury was found. He prepared detailed MLC which is Ex. PW4/A bearing his signature at PointC and patient was referred to SR Gynae for further examination and management.
PW11 - Dr. Arun Makkar, SR, Department of Urology, RML hospital, who deposed that on 23022015 one patient Vikas @ Vicky s/o Jaipal, Age 19 Years, male has been brought by Ct. Satish to the hospital. Dr. Madhurima Taneja Virmani had examined the patient and prepared the MLC and patient was referred to Urology Department for potency test. In Urology Department he medically examined the patient Vikas and gave his notes portion X to X on MLC Ex.PW11/ A bearing his signature at point A and bearing the signature of Dr. Madhurima Taneja Virmani at point B and he was of opinion that there is 17 of 40 18 FIR No.94/15 PS - Mahendra Park nothing to suggest patient was not capable of doing sexual intercourse.
PW12 - Dr. R.S. Mishra, CMO BJRM Hospital, who deposed that on 160215 patient Vikas @ Vicky s/o Jaipal, aged19 years, male was brought by ASI Sarla for medical examination and potency test. On examination there was no fresh injury was found on the body of the patient and patient was referred to Specialist Forensic Medicine for genitilya (genitalia) examination and potency test. He prepared the MLC which is Ex.PW12/A bearing his signature at point A. In Forensic Department concerned doctor had referred the patient RML hospital/ Higher Centres of the abovesaid test and they prepared rough notes from portion X to X on emergency registration No.BJR269660 which is Ex.PW12/B bearing his signature at point A. The testimonies of the prosecution witnesses shall be dealt with in detail during the course of appreciation of evidence.
6. Statement of accused Vikas @ Vicky was recorded u/s 313 Cr.P.C. wherein he pleaded innocence and false implication. Accused 18 of 40 19 FIR No.94/15 PS - Mahendra Park 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 Ms. Shweta Shukla, Learned Counsel for the accused and have also carefully perused the entire record.
10. The charge for the offences punishable u/s 19 of 40 20 FIR No.94/15 PS - Mahendra Park 328/376/366/377/506 IPC against accused Vikas @ Vicky is that on 23.03.2014 in the day time, time unknown, at A 770 Jahangirpuri, Delhi, within the jurisdiction of PS - Mahendra Park, he administered some intoxicating substance in cold drink and chocolates to prosecutrix (name withheld) D/o Sh. Brij Lal aged about 19 years, with intent to commit or to facilitate the commission of an offence, due to which she became unconscious and he forcibly committed rape upon her without her consent and against her will and thereafter, in April, 2014 at the abovesaid address he again forcibly committed rape upon the prosecutrix without her consent and then in June, 2014 he abducted the prosecutrix, with the intent that she may be forced and seduced to illicit intercourse and took her to a hotel in Meerut Cantt. U.P. where he forcibly committed rape upon her and also committed carnal intercourse upon her against the order of nature in a hotel in U.P., without her consent and against her will and he also criminally intimidated her by threatening her to kill her brother, if she disclosed about the incidents to anyone.
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 20 of 40 21 FIR No.94/15 PS - Mahendra Park 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. PW6 - Ms. Anupama Malik, Teacher, MCPS, FG1, Jahangirpuri, Delhi, has deposed that he has brought the original admission form, Admission Register, and affidavit regarding the age of prosecutrix. As per record on 29082001 prosecutrix (name withheld) alongwith her mother came to our school and mother of the prosecutrix filled the Admission Form and she also filled an affidavit regarding age of the prosecutrix. Copy of the same is Ex.PW6/A (OSR) and Ex.PW6/B respectively. On the basis of admission form and affidavit prosecutrix (name withheld) was admitted in our school in class Ist and entry was made at serial no.4983 in Admission and Withdrawal Register of the school. Copy of the same is Ex.PW6/C (OSR). As per record the Date of Birth of prosecutrix is 17051993.
During her crossexamination PW6 - Ms. Anupama Malik 21 of 40 22 FIR No.94/15 PS - Mahendra Park has deposed that : "It is correct that mother of the prosecutrix did not provide the birth certificate regarding age issued by MCD. It is wrong to suggest that I am deposing falsely".
There is nothing in the crossexamination of PW6 - Anupama Malik so as to impeach her creditworthiness. 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 the record that the date of the birth of the prosecutrix is 17.10.1993.
As the date of alleged incident is 23.03.2014 and the date of birth of prosecutrix is 17.05.1993, on simple arithmetical calculation, the age of prosecutrix comes to 20 years, 10 months and 06 days as on the date of incident on 23.03.2014.
The Hon'ble Supreme Court in case State of Maharashtra Vs. Gajanan Hemant Janardhan Wankdhede (2008) 8 SCC 38 has 22 of 40 23 FIR No.94/15 PS - Mahendra Park held as under : "13. .....On the basis of the evidence of the Headmaster and the original school leaving certificate and the school register which were produced the High Court came to abrupt conclusion that normally for various reasons the guardians to understate the age of their children at the time of admission in the school. There was no material or basis for coming to this conclusion. The High Court in the absence of any evidence to the contrary should not have come to hold that the date of birth of the prosecutrix was not established and the school leaving certificate and the school register are not conclusive.
14. Interestingly, no question was put to the victim in cross examination about the date of birth. The High Court also noted that no document was produced at the time of admission and a horoscope was purportedly produced. There is no requirement that at the time of admission documents are to be produced as regards the age of the student....."
In view of above and in the circumstances, it stands established on record that PW3 prosecutrix was aged 20 years, 10 months and 06 days as on the date of alleged incident on 23.03.2014. MEDICAL EVIDENCE OF THE PROSECUTRIX
13. PW10 - Dr. Yogesh Tekwani, CMO, BJRM hospital, has 23 of 40 24 FIR No.94/15 PS - Mahendra Park deposed that on 04022015 one patient Pooja d/o Brijlal Age 19 Years, female has been brought by lady Ct. Sunita to the hospital with the alleged history of sexual assault. She was medically examined by him and on examination no fresh external injury was found. He prepared detailed MLC which is Ex. PW4/A bearing his signature at PointC and patient was referred to SR Gynae for further examination and management.
PW 4 - Dr. Shweta Sinha, SR Obs. & Gynae, BJRM Hospital, Delhi, has deposed that she had been deputed by the MS of the hospital to depose on behalf of Dr. Sumiti Mehta who is on leave. She is acquainted with the handwriting and signatures of Dr. Sumiti Mehta as she has seen her signing and writing during the official course of the duties. As per the MLC No. 92001, on 04.02.2015 patient/Prosecutrix (name withheld) D/o Brij Lal, Age 19 Years, Female was produced in the hospital by L/Ct. Sunita whose gynecological examination was conducted by Dr. Sumiti Mehta and the said examination is encircled in red from Portion 'X to X' on the MLC Ex. PW 4/A, bearing the signature of Dr. Sumiti Mehta at point A. The treatment paper of the 24 of 40 25 FIR No.94/15 PS - Mahendra Park patient/Prosecutrix (name withheld) D/o Brij Lal, Age 19 Years, Female which was prepared by Dr. Sumiti Mehta at the time of the preparation of her MLC is Ex. PW4/B bearing the signature of Dr. Sumiti Mehta at point A. Despite grant of opportunity, PW 4 - Dr. Shweta Sinha and PW10 - Dr. Yogesh Tekwani were not crossexamined on behalf of the accused.
In view of above and in the circumstances, the medical examination vide MLC Ex. PW4/A, the gynaecological examination from Portion 'X to X' on the MLC Ex. PW4/A and the treatment papers Ex. PW4/B of PW3- prosecutrix stands proved on the record. VIRILITY OF THE ACCUSED VIKAS @ VICKY
14. PW 5 - Dr. Gopal Krishna, Medical Officer, BJRM Hospital, Delhi, has deposed that on 14.02.2015 he was posted as CMO in BJRM hospital. On that day one patient Vikas S/o Jaipal, Age 19 Years, Male was produced for medical examination by Ct. I.K.Dutt. He 25 of 40 26 FIR No.94/15 PS - Mahendra Park was examined by Dr. Bharat, JR under his supervision. No fresh external injury was seen at the time of examination. The MLC is Ex. PW5/A bearing his signature at PointA and the signature of Dr. Bharat at Point B. He identifies the handwriting of Dr. Bharat, JR at PointB and the noting in his hand is from PointX to X1, as he has worked with him and I has seen him writing and signing in course of his official duty.
PW12 - Dr. R.S. Mishra, CMO BJRM Hospital, has deposed that on 160215 patient Vikas @ Vicky s/o Jaipal, aged19 years, male was brought by ASI Sarla for medical examination and potency test. On examination there was no fresh injury was found on the body of the patient and patient was referred to Specialist Forensic Medicine for genitilya (genitalia) examination and potency test. He prepared the MLC which is Ex.PW12/A bearing his signature at point A. In Forensic Department concerned doctor had referred the patient RML hospital/ Higher Centres of the abovesaid test and they prepared rough notes from portion X to X on emergency registration No.BJR269660 which is Ex.PW12/B bearing his signature at point A. 26 of 40 27 FIR No.94/15 PS - Mahendra Park PW11 - Dr. Arun Makkar, SR, Department of Urology, RML hospital, has deposed that on 23022015 one patient Vikas @ Vicky s/o Jaipal, Age 19 Years, male has been brought by Ct. Satish to the hospital. Dr. Madhurima Taneja Virmani had examined the patient and prepared the MLC and patient was referred to Urology Department for potency test. In Urology Department he medically examined the patient Vikas and gave his notes portion X to X on MLC Ex.PW11/ A bearing his signature at point A and bearing the signature of Dr. Madhurima Taneja Virmani at point B and he was of opinion that there is nothing to suggest patient was not capable of doing sexual intercourse.
Despite grant of opportunity, PW5 - Dr. Gopal Krishan, PW11 - Dr. Arun Makkar and PW12 - Dr. R.S. Mishra 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 was capable of performing sexual intercourse.
27 of 40 28 FIR No.94/15 PS - Mahendra Park
16. Now let the testimony of PW3 - Prosecutrix be perused and analysed.
PW3 - Prosecutrix, in her examinationinchief has deposed which is reproduced and reads as under : "I used to reside in the house of my bua at A770, Jahangirpuri. Vikas @ Vicky used to reside at B Block Jahangirpuri, Delhi. I became acquainted with him through Facebook (Facebook per jaan pehchaan hui). I can identify him if shown to me.
At this stage, the wooden partition has been removed. Accused Vikas @ Vicky is present in the court (correctly identified).
The wooden partition now has been restored to its original position.
Accused Vikas used to visit the house of my bua and two times physical relations were also established between us with my consent. Accused Vikas had also promised to perform marriage with me. My bua came to know about the relations between me and accused Vikas 28 of 40 29 FIR No.94/15 PS - Mahendra Park and thereafter, she sent me to my parental house at Meerut Cantt. Our talking/conversation used to take place and once or twice accused Vikas had also come to Meerut Cantt. There at the Meerut Cantt on the asking of accused I went to a park there to meet him and there I asked him to perform the marriage with me, on which he said that the marriage of his sister is yet to be performed and his father has also since expired and after the marriage of his sister, he will perform the marriage with me. My family members were putting pressure upon me for my marriage somewhere else and as accused Vikas was not performing the marriage with me so it looked to me (mujhe laga) as if he is just deferring (ki vo taal raha hai) the performance of marriage with me. An impression was created that he lives in Delhi and will not perform the marriage with me. Under this misunderstanding and misimpression, I lodged the report with the police. I identify my signature at point A on the statement dated 04.02.2015. Vol. I put my signature on the asking of the police official and the said statement was not read over to me. The said statement is Mark PW3/PA.
My statement u/s 164 CrPC was also recorded by the Learned MM.
At this stage, a sealed envelope sealed with the seal of RR lying on the judicial record is opened and from it the proceedings u/s 164 CrPC are taken out and shown to the witness. I identify my signatures at point A on each page. Vol. I made the statement under the pressure of my family members and on the tutoring of the police and I was also not in a fit state of mind. The statement u/s 164 CrPC is Ex.PW3/A. I have not shown any place of incident to the police and the 29 of 40 30 FIR No.94/15 PS - Mahendra Park police had obtained my signature on blank and unfilled printed performas. The pointing out memo of the place of incident is already Ex.PW2/B. The disclosure statement of the accused is Mark PW3/PB.
Accused Vikas @ Vicky was arrested by the police vide arrest memo Ex.PW3/B bearing my signature at point A. My medical examination was also got conducted by the police.
My marriage has already taken place with accused Vikas and I am living in the house of my inlaws. I have brought my marriage certificate, the copy of which is Ex.P1 (OSR). "
From the aforesaid narration of PW 3- prosecutrix, it is clear that she used to reside in the house of my bua at A770, Jahangirpuri. Vikas @ Vicky used to reside at B Block Jahangirpuri, Delhi. She became acquainted with him through Facebook (Facebook per jaan pehchaan hui). She identified accused Vikas @ Vicky present in the court. Accused Vikas used to visit the house of her bua and two times physical relations were also established between them with her consent. Accused Vikas had also promised to perform marriage with her. Her bua came to know about the relations between her and accused
30 of 40 31 FIR No.94/15 PS - Mahendra Park Vikas and thereafter, she (bua) sent her to her parental house at Meerut Cantt. Our talking/conversation used to take place and once or twice accused Vikas had also come to Meerut Cantt. There at the Meerut Cantt on the asking of accused she went to a park there to meet him and there she asked him to perform the marriage with her, on which he said that the marriage of his sister is yet to be performed and his father has also since expired and after the marriage of his sister, he will perform the marriage with her. Her family members were putting pressure upon her for her marriage somewhere else and as accused Vikas was not performing the marriage with her so it looked to her (usae laga) as if he is just deferring (ki vo taal raha hai) the performance of marriage with her. An impression was created that he lives in Delhi and will not perform the marriage with her. Under this misunderstanding and mis impression, she lodged the report with the police. She identified her signature at point A on the statement dated 04.02.2015. Vol. She put her signature on the asking of the police official and the said statement was not read over to her. The said statement is Mark PW3/PA. Her statement u/s 164 CrPC was also recorded by the Ld. MM. She identified her signatures at point A on each page. Vol. she made the statement 31 of 40 32 FIR No.94/15 PS - Mahendra Park under the pressure of her family members and on the tutoring of the police and she was also not in a fit state of mind. The statement u/s 164 CrPC is Ex.PW3/A. She has not shown any place of incident to the police and the police had obtained her signature on blank and unfilled printed performas. The pointing out memo of the place of incident is already Ex.PW2/B. The disclosure statement of the accused is Mark PW3/PB. Accused Vikas @ Vicky was arrested by the police vide arrest memo Ex.PW3/B bearing her signature at point A. Her medical examination was also got conducted by the police. Her marriage had already taken place with accused Vikas and she is living in the house of her inlaws. She has brought her marriage certificate, the copy of which is Ex.P1 (OSR).
PW3 - Prosecutrix was also crossexamined by the Learned Addl. PP for the State as she was resiling from her previous statement which is reproduced and reads as under : "I have not stated to the police in my statement that on 23.03.2014 accused Vikas had come to the house of my bua with cold 32 of 40 33 FIR No.94/15 PS - Mahendra Park drink and chocolate, at that time I was alone at the house and Vikas offered me cold drink and chocolate and on drinking cold drink and consuming the chocolate, I became numb (mera dimaag sunn ho gaya) and thereafter, he made physical relations with me forcibly without my consent.(Confronted from portion A to A of the statement Mark PW3/PA where it is so recorded).
It is wrong to suggest that I have stated to the police in my statement that on 23.03.2014 accused Vikas had come to the house of my bua with cold drink and chocolate, at that time I was alone at the house and Vikas offered me cold drink and chocolate and on drinking cold drink and consuming the chocolate, I became numb (mera dimaag sunn ho gaya) and thereafter, he made physical relations with me forcibly without my consent or that in April'2014, accused Vikas again came to the house of my bua, he after inducing me and on the pretext of marriage established physical relations with me or that in June'2014 accused Vikas came to Meerut and he after inducing me took me to Rakesh hotel situated in Begumpur, Meerut Cantt and there he forcibly established physical with me and he, thereafter, had also taken me twothree times there and forcibly established physical relations with me or that accused Vikas had taken me to a hotel in Meerut, 56 times and there he forcibly established physical with me and he last time took me on 11.01.2015 in a hotel and there he forcibly established physical relations with me or that accused Vikas had given in writing on a piece of paper that he will perform the marriage with me and later on he had also snatched the said paper from me or that in March'2014 accused Vikas had come to the house of my bua with cold drink and chocolate, at that time I was alone at the house and Vikas offered me cold drink and chocolate and on drinking cold drink and consuming the chocolate, I became numb (mera 33 of 40 34 FIR No.94/15 PS - Mahendra Park dimaag sunn ho gaya) and thereafter, he made physical relations with me forcibly without my consent or that in April'2014, accused Vikas again came to the house of my bua, he after inducing me and on the pretext of marriage established physical relations with me or that accused Vikas took me on 11.01.2015 in a hotel at Meerut and there he forcibly established physical relations with me or that accused Vikas had given in writing on a piece of paper in the presence of the police officer that he will perform the marriage with me within six months and later on he had also snatched the said paper from me or that accused Vikas had performed sex with me against the order of the nature (galat tareeke se sex kiya) or that when my mother had proposed to the mother of accused Vikas, to perform my marriage with him (accused Vikas), she (mother of accused Vikas) had refused for the same or that I have stated in my statement u/s 164 CrPC that accused Vikas had threatened to kill my only brother or that I am concealing the true and actual facts or that I am deposing favouring the accused as I have since married with the accused, in order to save him or that I have been won over by the accused. "
During her crossexamination by the Learned Counsel for the accused, PW3- prosecutrix has deposed that : "It is correct that the physical relations between me and accused Vikas were established with my own free consent".
On analysing the entire testimony of PW3 - prosecutrix it is 34 of 40 35 FIR No.94/15 PS - Mahendra Park clearly indicated that during her examinationinchief she has specifically deposed that accused Vikas used to visit the house of her bua and two times physical relations were also established with them with her consent. During her crossexamination by Learned counsel for the accused she specifically deposed that, "it is correct that the physical relations between me and accused Vikas were established with my own free consent". She negated the suggestions put to her by the Learned Addl. PP for the State that on 23.03.2014 accused Vikas had come to the house of my bua with cold drink and chocolate, at that time she was alone at the house and Vikas offered her cold drink and chocolate and on drinking cold drink and consuming the chocolate, she became numb (mera dimaag sunn ho gaya) and thereafter, he made physical relations with her forcibly without her consent or that in April'2014, accused Vikas again came to the house of her bua, he after inducing her and on the pretext of marriage established physical relations with her or that in June'2014 accused Vikas came to Meerut and he after inducing her took her to Rakesh hotel situated in Begumpur, Meerut Cantt and there he forcibly established physical with her and he, thereafter, had also taken her twothree times there and forcibly established physical 35 of 40 36 FIR No.94/15 PS - Mahendra Park relations with her or that accused Vikas had taken her to a hotel in Meerut, 56 times and there he forcibly established physical with her and he last time took her on 11.01.2015 in a hotel and there he forcibly established physical relations with her or that accused Vikas had given in writing on a piece of paper that he will perform the marriage with her and later on he had also snatched the said paper from her or that she has stated in her statement u/s 164 Cr.P.C that in March'2014 accused Vikas had come to the house of her bua with cold drink and chocolate, at that time she was alone at the house and Vikas offered her cold drink and chocolate and on drinking cold drink and consuming the chocolate, she became numb (mera dimaag sunn ho gaya) and thereafter, he made physical relations with me forcibly without my consent or that she has stated in her statement u/s 164 Cr.P.C that in April'2014, accused Vikas again came to the house of my bua, he after inducing and on the pretext of marriage established physical relations with her or that she has stated in her statement u/s 164 Cr.P.C that accused Vikas took her on 11.01.2015 in a hotel at Meerut and there he forcibly established physical relations with her or that she has stated in her statement u/s 164 Cr.P.C that accused Vikas had given in writing on a piece of paper in the presence of 36 of 40 37 FIR No.94/15 PS - Mahendra Park the police officer that he will perform the marriage with her within six months and later on he had also snatched the said paper from me or that she has stated in her statement u/s 164 Cr.P.C that accused Vikas had performed sex with her against the order of the nature (galat tareeke se sex kiya) or that she has stated in her statement u/s 164 Cr.P.C that when her mother had proposed to the mother of accused Vikas, to perform her marriage with him (accused Vikas), she (mother of accused Vikas) had refused for the same or that she has stated in her statement u/s 164 CrPC that accused Vikas had threatened to kill her only brother or that she is concealing the true and actual facts or that she is deposing favouring the accused as she has since married with the accused, in order to save him or that she has been won over by the accused.
As discussed hereinbefore, PW3 - prosecutrix has been found to be aged around 21 years, from the testimony of PW3 - prosecutrix, nothing is being indicated that on 23.03.2014 in the day time, at A770 Jahangirpuri, Delhi, accused Vikas @ Vicky administered some intoxicating substance in cold drink and chocolates to PW3 - Prosecutrix with intent to commit or to facilitate the commission of an 37 of 40 38 FIR No.94/15 PS - Mahendra Park offence, due to which she became unconscious or that thereafter he forcibly committed rape upon her without her consent and against her will or that thereafter, in April, 2014 at the abovesaid address at A770 Jahangirpuri, Delhi, he again forcibly committed rape upon the prosecutrix without her consent or that then in June, 2014 he abducted the prosecutrix, with the intent that she may be forced and seduced to illicit intercourse and took her to a hotel in Meerut Cantt. U.P. where he forcibly committed rape upon her or that he also committed carnal intercourse upon her against the order of nature in a hotel in U.P., without her consent and against her will or that he also criminally intimidated her by threatening her to kill her brother, if she disclosed about the incidents to anyone.
17. In view of above and in the circumstances, I find that the prosecution has failed to prove its case beyond reasonable doubt against accused Vikas @ Vicky. The hostility of PW3 - prosecutrix has knocked out the bottom of the case of the prosecution. There is nothing on record to indicate that on 23.03.2014 in the day time, at A770 Jahangirpuri, Delhi, accused Vikas @ Vicky administered some intoxicating substance 38 of 40 39 FIR No.94/15 PS - Mahendra Park in cold drink and chocolates to PW3 - Prosecutrix aged around 21 years with intent to commit or to facilitate the commission of an offence, due to which she became unconscious or that thereafter he forcibly committed rape upon her without her consent and against her will or that thereafter, in April, 2014 at the abovesaid address at A770 Jahangirpuri, Delhi, he again forcibly committed rape upon the prosecutrix without her consent or that then in June, 2014 he abducted the prosecutrix, with the intent that she may be forced and seduced to illicit intercourse and took her to a hotel in Meerut Cantt. U.P. where he forcibly committed rape upon her or that he also committed carnal intercourse upon her against the order of nature in a hotel in U.P., without her consent and against her will or that he also criminally intimidated her by threatening her to kill her brother, if she disclosed about the incidents to anyone.
I accordingly, acquit accused Vikas @ Vicky for the offences punishable u/s 328/376/366/377/506 IPC.
18. In view of above discussion, I am of the considered opinion that as far as the involvement of accused Vikas @ Vicky in the 39 of 40 40 FIR No.94/15 PS - Mahendra Park commission of offences punishable u/s 328/376/366/377/506 IPC is concerned, the same is not sufficiently established by the cogent and reliable evidence and in the ultimate analysis, the prosecution has failed to bring the guilt home to the accused Vikas @ Vicky beyond shadows of all reasonable doubts and there is a room for hypothesis, consistent with that of innocence of accused. I, therefore, acquit accused Vikas @ Vicky for the offences punishable u/s 328/376/366/377/506 IPC after giving him the benefit of doubt. Accused Vikas @ Vicky is on bail. However, u/s 437A Cr.P.C. the bail bond of accused Vikas @ Vicky 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 17th Day of October, 2015 Additional Sessions Judge Special Fast Track Court (North), Rohini, Delhi 40 of 40